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Falls Church Construction Corp. v. Valle12/12/1995
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a preponderance of the evidence that he suffered an injury by accident "arising out of and in the course of employment," Code § 65.2-101, and "that the conditions of the workplace . . . caused the injury ." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). Unless we can say as a matter of law that claimant failed to meet his burden of proof, the commission's findings are binding and conclusive upon us. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
After reviewing the record, we hold the commission did not err in finding that claimant sustained an injury by accident arising out of and in the course of work. Testimony revealed that claimant fell from a scaffold at the workplace as he was performing regular work duties. As he fell, claimant felt a snap in his back and a burning sensation. Claimant promptly reported his injury to his foreman, received permission to seek medical treatment, and received emergency room treatment within twenty minutes. The examining physician first diagnosed acute back strain and later a herniated disc. The medical records do not indicate any other possible cause for claimant's back injury, and there is no indication of prior back ailments.
IV.
RESIDUAL WORK CAPACITY
A partially disabled claimant has the burden of proving entitlement to benefits and that he made a reasonable effort to procure suitable work and to market his remaining work capacity. Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 463-64, 359 S.E.2d 98, 100 (1987). "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 . . . the party prevailing before the commission." National Linen Svc. v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 33 (1989). We hold that the commission did not err in determining claimant adequately marketed his residual work capacity.
On January 20, 1994, claimant was released to light duty work status. Claimant applied for unemployment benefits in Maryland, which he received for twenty-six weeks. Claimant supplied the Maryland Employment Commission with lists of job contacts he made, and he testified as to jobs applied for from March to August of 1994, the month of the deputy commissioner's hearing. Claimant worked as an announcer on a Spanish speaking radio station for three weeks in September and October 1993, earning eighty dollars per week, delivered newspapers with his family, and made attempts to gain computer skills to enhance his marketability. As the commission correctly recognized, claimant's efforts qualified as reasonable within the parameters set forth in National Linen Svc., 8 Va. App. at 272, 380 S.E.2d at 34.
V.
OBSTRUCTION OF MEDICAL TREATMENT
Under some circumstances, failure to follow a physician's instructions may be unjustified and lead to a suspension of benefits. See generally Holland v. Virginia Bridge & Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867, 868 (1990)(holding employee who unjustifiably refuses reasonable and necessary medical treatment should be penalized); Code § 65.2-603(B) (stating employee may not unjustifiably refuse to accept medical or rehabilitative services). In this case, Falls Church Construction a
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