Opinion
Record No. 1693-91-1
January 19, 1993
Robert W. McFarland (McGuire, Woods, Battle Boothe, on brief), for appellants.
John H. Klein (Rutter Montagna, on brief), for appellee.
Present: Judges Baker, Barrow and Bray
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Tark International and Royal Insurance Company of America (jointly referred to as employer) assert that the commission erred when it reinstated benefits to Roy G. Allen (claimant), whose benefits had been suspended because he refused medical services. Employer argues that even though it had not filed an application for change of condition, before suspended benefits may be restored the claimant must prove that he remains incapacitated. Employer also argues that in the hearing for reinstatement, the commission must consider evidence of present incapacity and whether the claimant's present condition is causally related to the injury for which the original award was made. We disagree and affirm the decision of the commission.
As the parties are familiar with the facts, we state only those necessary to an understanding of our decision.
Because claimant refused to submit to an EEG test ordered by a neurosurgeon who had been employed to examine claimant, the commission suspended compensation benefits until such time as claimant submitted to the test. After the suspension, claimant submitted to the test and applied for reinstatement of his benefits. A hearing was held, at which employer, without filing an application for a change of condition, sought to defeat claimant's application by producing evidence that claimant was no longer incapacitated, and evidence that the condition from which he presently suffered was not caused by the injury for which an award had been entered. Employer also asserted that before a claimant is entitled to reinstatement of benefits he must show that his present incapacity is related to that injury.
The commission held that claimant need only show that he has cured the refusal for which his benefits were suspended, and that incapacity and causation may not be considered unless employer has filed an application for a change of condition hearing. We agree.
An employee who applies for reinstatement of temporary total benefits after the commission has suspended them because he or she unjustifiably refused selective employment is not required after curing the refusal to establish that he or she continues to be disabled from the work-related accident. Hercules, Inc. v. Carter, 13 Va. App. 219, 409 S.E.2d 637 (1991), aff'd on rehearing en banc, ___ Va. App. ___, 419 S.E.2d 428 (1992). A suspension of benefits does not terminate the award. Id. at 222, 409 S.E.2d at 639. "Whether the benefits are discontinued during the period of unjustified refusal of selective employment or suspended during the period of unjustified refusal of medical treatment, the purpose and result are the same." Id. "A finding that [an] employee has not cooperated with the employer does not include a finding that the employee is no longer disabled."Id. at 223, 409 S.E.2d at 639.
Without filing an application for a change of condition, employer sought to defeat claimant's application for reinstatement of benefits with evidence that claimant was no longer incapacitated by conditions that were caused by the accident for which the original award was made. King's Market v. Porter, 227 Va. 478, 317 S.E.2d 146 (1984) and Chavis Transfer v. Dicks, 229 Va. 548, 331 S.E.2d 449 (1989), relied on by employer, are not controlling in the case before us. Hercules is controlling. King's Market held that in a hearing on an application for a change of condition, capacity to work and causal relationship to the injury for which an award has been entered are relevant and admissible. When, however, a claimant applies for reinstatement of suspended benefits, and no other application is being heard, the procedure is not controlled by the King's Market decision. Hercules, 13 Va. App. at 223, 409 S.E.2d at 639.
The Chavis Transfer case involved the commission's creation of a prospective award and is not relevant to the matter before us.
We hold that claimant was not required to prove incapacity in order to have the suspension order lifted, and because employer had not filed an application for a change of condition, evidence of incapacity and causation were not relevant to the issue whether claimant was entitled to have his benefits reinstated because his refusal to submit to an EEG test had been cured.
For the reasons stated, the decision of the commission is affirmed.
Affirmed.