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DAME v. LOCKWOOD CARPETS, INC. (unpublished)


BRADFORD S. DAME

v.

LOCKWOOD CARPETS, INC.
AND
STATE FARM INSURANCE COMPANY

(unpublished)


MAY 27, 1997
Record No. 3129-96-1

BRADFORD S. DAME

v.

LOCKWOOD CARPETS, INC. AND
STATE FARM INSURANCE COMPANY

Present: Judges Bray, Annunziata and Overton

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(John H. Klein; Matthew H. Kraft; Rutter & Montagna, on
brief), for appellant.

(Ruth Nathanson; Midkiff & Hiner, on brief), for appellees.


Bradford S. Dame (claimant) contends that the Workers’
Compensation Commission (commission) erred in not awarding him
compensation benefits after July 3, 1995 based upon its finding
that he unjustifiably refused medical treatment. Upon reviewing
the record and the briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
commission’s decision. Rule 5A:27.

"General principles of workman’s compensation law provide
that ‘[i]n an application for review of any award on the ground
of change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.’" Great Atl. & Pac. Tea Co. v. Bateman,
4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot
Freight Carriers, Inc. v. Reeves
, 1 Va. App. 435, 438-39, 339
S.E.2d 570, 572 (1986)). Unless we can say as a matter of law
that claimant’s evidence sustained his burden of proof, the
commission’s findings are binding and conclusive upon us. See
Tomko v. Michael’s Plastering Co., 210 Va. 697, 699, 173
S.E.2d 833, 835 (1970).

On September 12, 1992, claimant sustained an injury by
accident arising out of and in the course of his employment to
his back and knee. Pursuant to awards of the commission, claimant
received temporary total and temporary partial disability
benefits for various periods of time following his injury. On
March 3, 1995, claimant filed an application seeking an award of
temporary total disability benefits commencing December 28, 1994.

The medical evidence showed that on January 17, 1995, after
working briefly as a painter’s assistant, claimant returned to
Dr. Douglas Griffin, complaining of increased back pain and an
inability to work. Dr. Griffin diagnosed myofascial low back pain
and prescribed physical therapy and medication. When next
examined by Dr. Griffin on May 23, 1995, claimant’s condition
remained unchanged. Dr. Griffin then referred claimant to the
Medical College of Virginia Pain Management Center (MCV) for
evaluation and treatment, and recommended that claimant not work
until seen at MCV. Claimant testified that Dr. Griffin told him
he would make an appointment at MCV for claimant. Neither Dr.
Griffin nor employer ever made an appointment for claimant at
MCV.

On June 12, 1995, Dr. Griffin wrote to claimant’s attorney,
reiterating that he had "literally transferred"
claimant’s care to MCV and that claimant should not return to
work until seen at MCV. At no time after May 23, 1995 did
claimant contact MCV for an appointment nor did he ever return to
Dr. Griffin for treatment of his back condition, although he saw
Dr. Griffin in April 1996 for an unrelated shoulder problem.

Based upon this record, the commission found that
"[w]hile the claimant did not affirmatively refuse any
medical treatment provided by the employer, he also made no
effort to secure an appointment at MCV, even after his attorney
was advised by Dr. Griffin on June 12, 1995, that he had
transferred the claimant’s care to MCV." Recognizing that it
might have taken several weeks to secure an appointment at MCV,
the commission awarded temporary total disability benefits to
claimant for a period of three weeks after June 12, 1995,
terminating benefits as of July 3, 1995. The commission held that
claimant failed to prove continuing disability after that date.

Based upon claimant’s failure to seek medical treatment for
his compensable injuries from May 23, 1995, when Dr. Griffin
referred him to MCV, to the June 27, 1996 hearing date, the
commission was entitled to conclude that claimant failed to prove
continuing disability after July 3, 1995. As the commission
noted, it is not required to "presume a continuing
disability." Based upon the lack of evidence of a continuing
disability after July 3, 1995, we cannot find as a matter of law
that claimant proved he was entitled to an award of temporary
total disability benefits after that date.

Accordingly, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010
this opinion is not designated for publication.

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