Howard Clute v. Big Lots Stores, Inc. and Arch Insurance Company

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Senior Judge Bumgardner
HOWARD CLUTE
MEMORANDUM OPINION*
v. 	Record No. 0252-15-2 	PER CURIAM
JUNE 9, 2015
BIG LOTS STORES, INC. AND
ARCH INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Michael J. Beste; Reinhardt Harper Davis, PLC, on brief), for
appellant.
(Nicholas P. Marrone; Kathryn Lea Harman; Semmes, Bowen &
Semmes, on brief), for appellees.
Howard Clute (“claimant”) appeals the decision of the Workers’ Compensation
Commission (“commission”) declining to award him disability benefits from August 19, 2013
and ongoing and by only awarding him disability benefits on August 19, 2013, which was the
day of his right knee replacement surgery. On appeal, claimant argues the commission
erroneously (1) held that he failed to sustain his burden of proof for an award of temporary total
disability from August 19, 2013 and ongoing; and (2) declined to consider his testimony to prove
his disability, but instead determined that it could only speculate as to a period of disability
without medical records.1 We have reviewed the record and the commission’s opinion and find
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1 Big Lots Stores, Inc. and Arch Insurance Company argue claimant was not entitled to
disability benefits for his right knee on August 19, 2013 because that claim was barred by the
doctrine of res judicata. We have determined that the commission did not err in finding that
claimant’s claim for benefits for his right knee was not barred by res judicata. See Big Lots
Stores, Inc. v. Clute, Record No. 0206-15-2.
UNPUBLISHED

- 2 -
that this appeal is without merit. Accordingly, we affirm for the reasons stated by the
commission in its opinion. See Clute v. Big Lots Stores, Inc., JCN VA00000420654 (Jan. 14,
2015). We dispense with oral argument and summarily affirm because the facts and legal
contentions are adequately presented in the materials before the Court and argument would not
aid the decisional process. See Code § 17.1-403; Rule 5A:27.
Affirmed.