TEMPORARY TOTAL
Code Sec. 65.2-500 (A) provides the compensation formula in total disability cases: When the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such total incapacity, a weekly compensation equal to 66 2/3 percent of his average weekly wages, with a minimum not less than 25 percent and a maximum of not more than 100 percent of the average weekly wage of the Commonwealth as defined herein."Benefits under [Code Secs. 65.2-500 and 65.2-502] for total and partial incapacity compensate the employee for loss of earnings resulting from the injury." Crystal Oil Co., Inc. v. Dotson, 12 Va. App. 1014, 1020-21, 408 S.E.2d 252, 255 (1991). "The extent of earning capacity must be ascertained from the evidence, and such is not limited to any special class of proof. All legal facts and circumstances surrounding the claim should properly be considered . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 573 (1986). Compensation in both total and partial disability cases "is ultimately dependent upon and determined on the loss of wages." Nicely v. Virginia Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 529, 531 (1954).
On May 19, 1998, claimant's doctor discharged claimant and instructed him to return to his "normal activity," except for some minor protective measures for his left hand which he had injured in a compensable accident. The commission, as fact finder, could reasonably infer that claimant was no longer totally disabled as of May 19, 1998. David R. Birmingham, Jr. v. Century Concrete, Inc., Record No. 0219-99-4 (June 8, 1999). WP Version.
Following a compensable accident, claimant's doctor released her to return to work. Claimant went back to work, but had to stop because of severe back pain. Claimant returned to her doctor about a week later and when the doctor learned the circumstances, the doctor did not recommend claimant return to her job, but instead referred her for physical therapy and for treatment by another doctor. This is sufficient evidence from which a period of temporary total disability may be inferred. AT&T Corporation v. Maria A. Lewis-Thomas, Record No. 0171-99-4 (June 22,1999). WP Version.
The Workers' Compensation Commission (commission) did not err in finding that claimant proved he was totally disabled beginning August 13, 1998. Claimant's doctor stated in a letter to claimant's attorney his opinion that the claimant was totally disabled from the time of his accident. This opinion is substantiated by his note dated August 13, 1998, stating that the claimant was to be out of work for the "indefinite future." The commission was entitled to weigh any inconsistencies between that evidence and the doctor's deposition testimony. The commission did so and articulated legitimate reasons for concluding that the doctor's deposition statements assumed that the claimant would undergo the surgery that was being considered and that these statements did not sufficiently outweigh the other evidence to require a finding that the claimant failed to carry his burden. Faraway Farms, Inc. v. Dinges, Record No. 2163-99-3 (February 8, 2000). WP Version.
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