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McKinney v. Pepsi Cola Co.2/28/1995
Per Curiam
Joseph T. McKinney contends that the Workers' Compensation Commission erred in refusing to award him temporary disability benefits related to his compensable December 18, 1989 neck injury. 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. Rule 5A:27.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings made by the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). The commission did not award temporary disability benefits related to McKinney's December 18, 1989 compensable neck injury because the commission found that he did not make a request for such an award in his application or at the November 9, 1993 hearing. Credible evidence supports that finding.
McKinney's application sought an award of permanent disability benefits for loss of use of McKinney's upper right extremity and cited Code §§ 65.2-708 and 65.2-503. The application also sought an award of medical expenses and disability benefits for a back injury, citing Code § 65.2-502, and for the loss of use of both legs, citing Code § 65.2-503, both of which were related to a May 10, 1992 accident. McKinney's application did not request an award of temporary disability benefits related to his December 18, 1989 neck injury.
At the evidentiary hearing, the deputy commissioner recited McKinney's claims as a request for permanent disability benefits for the loss of use of his right arm resulting from the December 18, 1989 injury and as a request for partial disability benefits beginning October 1, 1993, and resulting from accidents on May 10, 1991 and July 23, 1991. McKinney's counsel agreed with the deputy commissioner's recitation of McKinney's claims.
Thus, credible evidence supports the commission's finding that McKinney did not request an award of temporary disability benefits related to his December 18, 1989 neck injury. Accordingly, we affirm the commission's decision not to award such benefits. Affirmed.
Disposition
Affirmed.
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