Shelby Guthrie Shaw v Merchant's Tire & Auto et al

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
SHELBY GUTHRIE SHAW MEMORANDUM OPINION*
v. 	Record No. 0899-98-1 	PER CURIAM
SEPTEMBER 1, 1998
MERCHANT'S TIRE & AUTO
AND SAFECO INSURANCE COMPANY OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Karen M. Rye, on brief), for appellant.
(Lisa C. Healey; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellees.
Shelby G. Shaw contends that the Workers' Compensation
Commission ("commission") erred in finding that as of December
13, 1996, she was not entitled to compensation benefits because
she failed to market her residual capacity. 	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. 	See Rule 5A:27.
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).
Unless we can say as a matter of law that Shaw's evidence
sustained her burden of proving she was totally disabled after
December 13, 1996, the commission's findings are binding and
conclusive upon us. 	See Tomko v. Michael's Plastering Co., 210
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying Shaw an award of compensation benefits after
December 13, 1996, the commission made the following findings:
We also agree with the Deputy
Commissioner's decision that [Shaw's] award
is limited because she did not market her
residual skills. 	The documentary evidence on
whether [Shaw's] treating physician, Dr.
[Edward D.] Habeeb, considered [Shaw] totally
disabled is inconsistent. 	While he wrote on
October 25, 1996, that [Shaw] was excused
from all work including her preinjury job, he
wrote in December that [Shaw] was "capable of
clerical/administrative (sedentary) activity"
but also wrote [that Shaw] would never
recover sufficiently to perform her
pre-injury duties or "any other work." 	While
these inconsistencies are problematic, [Shaw]
testified she knew Dr. Habeeb restricted her
from work that required her being on her feet
or moving around a lot. 	[Shaw's] testimony
about her restrictions is consistent with the
December form that said she could do clerical
or administrative work.
Contrary to Shaw's argument on appeal, we find nothing in
the record to indicate that the commission impermissibly held her
to a higher burden of proof with respect to the disability issue.
To receive benefits, Shaw had to establish her claim by a
preponderance of the evidence. 	See Bassett-Walker, Inc. v.
Wyatt, 26 Va. App. 87, 92, 493 S.E.2d 384, 387 (1997). 	The
commission, as fact finder, was entitled to weigh the medical
evidence and to resolve any inconsistencies in that evidence
against Shaw. 	"Medical evidence is not necessarily conclusive,
but is subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401

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S.E.2d 213, 215 (1991).
Dr. Habeeb's December 1996 Attending Physician's Report
stated that Shaw was capable of performing
clerical/administrative sedentary work. 	Furthermore, Shaw
testified that she received that report in December 1996 and was
aware of its contents. 	Shaw admitted that she did not market her
residual capacity after that date, although she had a duty to do
so. 	See Ridenhour v. City of Newport News, 12 Va. App. 415, 418,
404 S.E.2d 89, 90-91 (1991). 	Thus, we cannot say as a matter of
law that Shaw proved she was totally disabled after December 13,
1996.
For these reasons, we affirm the commission's decision.
Affirmed.