Home / Fulltext Opinions / Virginia Court of Appeals / AUDUBON TREE EXPERTS, INC. v. REIGHARD




JULY 1, 1997
Record No. 0214-97-4





Present: Judges Benton, Coleman and Willis

(Douglas A. Seymour; Law Office of Harold MacLaughlin, on brief),
for appellants.

(Lawrence J. Pascal; Ashcraft & Gerel, on brief), for

Audubon Tree Experts, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that
the Workers’ Compensation Commission erred in finding that (1)
Kurt F. Reighard proved he was entitled to an award of temporary
total disability benefits from November 22, 1995 through April
29, 1996; and (2) Reighard adequately marketed his residual work
capacity during that time period. 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.

Factual findings made by the commission will be upheld on
appeal if supported by credible evidence. See James v.
Capitol Steel Constr. Co.
, 8 Va. App. 512, 515, 382 S.E.2d
487, 488 (1989). On appeal, we view the evidence in the light
most favorable to the prevailing party below. See R.G.
Moore Bldg. Corp. v. Mullins
, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990).

So viewed, the evidence proved that Reighard sustained a
compensable injury to his left knee on June 24, 1993. He received
temporary total disability benefits for various periods of time
following his injury. It was undisputed that Reighard found
selective employment on his own with Tyson’s Service Corporation.
The commission then entered an award for partial incapacity
beginning March 1, 1995, which it modified on January 22, 1996.
Reighard testified that after a period of time, he was asked to
perform additional duties for Tyson’s which exceeded his
restrictions. On November 22, 1995, he quit work because he was
having pain in his knee and could hardly walk.

Reighard returned to his treating physician, Dr. William A.
Hazel, Jr., complaining of increased knee pain. Dr. Hazel
prescribed physical therapy three times per week and suggested
the possibility of Reighard undergoing arthroscopic surgery. On
April 29, 1996, Dr. Hazel performed arthroscopic surgery on
Reighard’s knee. On June 11, 1996, Dr. Hazel released Reighard to
light-duty work.

On February 20, 1996, Reighard filed a change in condition
application seeking temporary total disability benefits beginning
November 22, 1995. In response to a letter from Reighard’s
counsel, Dr. Hazel opined that Reighard was unable to work on
December 15, 1995, and that, to his knowledge, Reighard had not
worked since. Dr. Hazel noted that he had not discussed with
Reighard any "alternative arrangements which could have been
workable." Dr. Hazel opined that Reighard had
"clearly" been incapacitated since the April 29, 1996


As the commission correctly noted, it is well settled that an
employee who obtains selective employment on his own may
terminate that employment without explanation. Thereafter,
benefits for temporary total disability must resume unless it is
shown that the employee has fully recovered and is able to resume
regular employment. See American Steel Placing Co.,
Inc. v. Adams
, 230 Va. 189, 192, 335 S.E.2d 270, 272 (1985); Big
D Quality Homebuilders v. Hamilton
, 228 Va. 378, 380, 322
S.E.2d 839, 841 (1984).

Credible evidence proved that after Reighard procured
selective employment on his own, he was forced to quit because
its duties exceeded his restrictions. No evidence proved that
Reighard had fully recovered from his knee injury and that he
could resume his regular employment. Therefore, the commission
did not err in awarding temporary total disability benefits to
Reighard beginning November 22, 1995.


A claimant’s effort to market his residual capacity must be
evaluated in the context of "reasonableness." See
Ridenhour v. City of Newport News, 12 Va. App. 415, 418,
404 S.E.2d 89, 90 (1991). "This would necessarily
include consideration of the claimant’s perception of his
condition, his abilities, and his employability, and of the basis
for that perception." Id. at 418, 404 S.E.2d at

The evidence showed that Dr. Hazel did not discuss with
Reighard the possibility of returning to light-duty employment
between December 15, 1995 and Reighard’s surgery in April 1996.
Rather, Dr. Hazel prescribed frequent physical therapy and
discussed the possibility of future surgery. Reighard testified
that he was involved in physical therapy three days per week and
that he understood that he was not able to work at that time.
Based upon Dr. Hazel’s medical reports and Reighard’s testimony,
the commission could infer that it was reasonable for Reighard to
perceive that Dr. Hazel had not released him to any type of
light-duty employment between December 15, 1995 and April 29,
1996, the date of his surgery. "Where reasonable inferences
may be drawn from the evidence in support of the commission’s
factual findings, they will not be disturbed by this Court on
appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App.
398, 404, 374 S.E.2d 695, 698 (1988).

Because credible evidence supports the commission’s findings,
those findings are binding and conclusive upon us. Accordingly,
we affirm the commission’s decision.




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