Home / Uncategorized / BLAKER v. PERRY'S HEATING, AIR AND ELECTRIC, INC., et al.


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ELECTRIC, INC., et al.


JUNE 6, 2000

Record No. 1010-99-1






Present: Judge Humphreys, Senior Judges Hodges
and Overton

Argued at Chesapeake, Virginia

W. Mark Broadwell (Forbes & Broadwell, on
brief), for appellant.

F. Nash Bilisoly (Kelly O. Stokes; Vandeventer
Black, L.L.P., on brief), for appellees.



On appeal from a decision of the Workers’
Compensation Commission, James M. Blaker contends that the
commission erred in finding (1) that he unjustifiably refused to
attend a medical examination, as directed by Code
? 65.2-607(A), scheduled on July 15, 1997, (2) that Perry’s
Heating, Air and Electric, Inc., and its insurer did not engage
in improper medical management by scheduling the July 15, 1997
appointment, and (3) that Blaker failed to adequately market his
residual work capacity. The record supports the findings of the
commission, and we affirm.

I. Background

On appeal, we view the evidence in the light
most favorable to the party prevailing below. See Crisp
v. Brown’s Tysons Corner Dodge, Inc.
, 1 Va. App. 503, 504,
339 S.E.2d 916, 916 (1986). The findings of the commission, if
based on credible evidence, are conclusive and binding on this
Court. See Morris v. Badger Powhatan/Figgie Int’l, Inc.,
3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). "[W]e
follow the settled rule that the construction accorded a statute
by public officials charged with its administration is entitled
to be given weight by the courts. Indeed, this Court has said
that the commission’s construction of the Workers’ Compensation
Act should be given ‘great’ weight." Bohle v. Henrico
County School Board
, 246 Va. 30, 35, 431 S.E.2d 36, 39 (1993)
(citations omitted).

Blaker, an electrician, suffered multiple
injuries to his mouth and neck while helping a co-worker on
November 4, 1994. The co-worker inadvertently struck Blaker in
the face with a hammer. He received an award for those injuries
from the commission. Perry’s filed an application in July 1997
for a hearing to terminate or suspend benefits based upon the
grounds that Blaker had returned to work and that he had failed
to attend a medical appointment with his treating physician.
After the hearing was docketed, Blaker broke his leg in a
non-work-related injury. He was released for work on January 7,
1998, and filed an application for benefits as of January 8,

Both applications were heard in a single
hearing. At the hearing, Blaker admitted that he had returned to
work for a time, but defended against Perry’s position by
asserting that Perry’s had engaged in improper medical management
with regards to the July 1997 medical appointment. The deputy
commissioner refused to rule on the issue of improper medical
management. He found that Blaker had unjustifiably refused to
attend the appointment and that Blaker’s refusal to seek
employment outside of his union constituted a failure to
adequately market his residual capacity. The full commission

II. Refusal to Attend

Blaker contends that the commission erred in
finding that he refused to attend the July 15, 1997 medical
appointment. He argues that he had no notice that the appointment
was to be an "independent medical examination" and,
therefore, his attendance was not mandatory under Code
? 65.2-607. Code ? 65.2-607 provides, in relevant

A. After an injury and so long as he claims
compensation, the employee, if so requested by his employer
. . . , shall submit himself to examination, at
reasonable times and places, by a duly qualified physician or
surgeon designated and paid by the employer
. . . .

B. If the employee refuses to submit himself to
or in any way obstructs such examination requested by and
provided for by the employer, his right to take or prosecute any
proceedings under this title shall be suspended until such
refusal or objection ceases and no compensation shall at any time
be payable for the period of suspension unless in the opinion of
the Commission the circumstances justify the refusal or

Blaker admits that he received notice of the
July 15, 1997 appointment. He did not attend the appointment, nor
did he notify the employer, insurance company, or commission of
his reasons for refusing to attend the appointment. Blaker argues
that Dr. Byrd was no longer his treating physician, and so the
appointment was improper medical management. See infra.
The fact that he did not consider Dr. Byrd to be his treating
physician any longer and that his course of treatment with Dr.
Byrd had ended, coupled with the contents of the notification
letter, support the commission’s finding that Blaker was on
notice that the July 15, 1997 appointment was an examination
requested by the employer, and not an attempt by the employer to
force Blaker into a renewed course of treatment with Dr. Byrd.

III. Improper Medical

Blaker further argues that the July 15
appointment with Dr. Byrd was improper medical management by
Perry’s. For the reasons stated above, the record supports the
commission’s finding that the appointment was not a forced course
of treatment, but rather an examination requested by Perry’s
under Code ? 65.2-607. Both parties admit that Dr. Byrd had
not anticipated seeing Blaker for further treatment, as Blaker
had reached maximum medical improvement based on his decision to
treat the problem medically rather than surgically. Nothing in
the record, aside from Blaker’s conclusory allegations, supports
a finding that Perry’s was attempting to force Blaker to use Dr.
Byrd as his treating physician and to renew treatment with him.

IV. Failure to Adequately
Market Residual Capacity

Blaker contends that the commission erred in
finding that he failed to market his residual capacity when
seeking employment. Blaker joined a union after his injury and,
once released to light duty work, sought employment only through
the union channels. Blaker argues that he was required to do this
or risk losing his status as a union member in good standing.

A claimant who is released to light-duty work
must prove that he has made a reasonable effort to market his
remaining work capacity during any period for which benefits are
sought. See Washington Metro. Transit Auth. v. Harrison,
228 Va. 598, 601, 324 S.E.2d 654, 655 (1985).

In determining whether a claimant has made a
reasonable effort to market his remaining work capacity, we view
the evidence in the light most favorable to [Perry’s], as [the
employer] was the prevailing party before the commission.
However, where there is no conflict in the evidence, as here, the
question of the sufficiency of the evidence is one of law.

National Linen Service v. McGuinn, 8 Va.
App. 267, 270, 380 S.E.2d 31, 32 (1989) (citations omitted).

Blaker has worked as an electrician since 1969.
At the time of his compensable injury, he was working as an
electrician in a non-union job. He joined the union of his own
volition after the injury, in June 1997. Once released to
light-duty work, he confined his search for employment to those
jobs approved by the union; he telephoned the union employment
"hot line" a few times per week and visited the local
union hall every few weeks.

This case is distinguishable from U.S. Air,
Inc. v. Joyce
, 27 Va. App. 184, 497 S.E.2d 904 (1998). In Joyce,
the employee had worked for U.S. Air for seventeen years as a
mechanic. His employment contract was under a union contract,
which prohibited employees from seeking work outside of U.S. Air.
After his injury, Joyce could not return to his previous job, and
so requested a release from the employer to seek outside
employment without penalty of losing that union job. U.S. Air

In Joyce’s case, his very employment was tied
to the union contract. The employer prohibited Joyce from seeking
outside employment and then argued that Joyce had refused to seek
such employment. In Blaker’s case, he joined the union of his own
choice, after the injury, and then argued that such choice
limited his employment options. Under the facts and circumstances
of this case, we cannot say as a matter of law that Blaker’s
evidence sustained his burden of proving that he made a good
faith, reasonable effort to market his residual work capacity.

The judgment of the commission is affirmed.




[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.