COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Felton
Argued at Chesapeake, Virginia
VERNON LEE PRUDEN
OPINION BY
v. Record No. 1803-04-1 JUDGE WALTER S. FELTON, JR.
MAY 10, 2005
PLASSER AMERICAN CORPORATION AND
TWIN CITY FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Karen M. Rye (Law Office of Karen M. Rye, on brief), for
appellant.
S. Vernon Priddy III (Sands Anderson Marks and Miller, on brief),
for appellees.
Appellant Vernon Lee Pruden (claimant) appeals the decision of the Workers’
Compensation Commission reducing his award for disability compensation for the permanent
partial loss of use of his right arm by the amount of disability compensation previously awarded
for scarring disfigurement involving the same anatomical area, pursuant to Code § 65.2-503. He
contends that the doctrine of res judicata precluded the commission from reviewing and, in
effect, modifying its prior award for scarring disfigurement to his right upper body and back to
include scarring of his right shoulder and arm area. Claimant also argues that the commission
erred in finding that the previous award for disfigurement was to the same anatomical area for
which the subsequent award for partial loss of use of his right arm was granted. For the reasons
that follow, we affirm the commission’s reduction of claimant’s award for disability
compensation benefits for the permanent partial use of his right arm by those previously awarded
for the disfigurement.
BACKGROUND
On appeal, we view the evidence before the commission in the light most favorable to the
prevailing party, here the employer. Tomes v. James City (County of) Fire, 39 Va. App. 424,
429, 573 S.E.2d 312, 315 (2002). So viewed, the evidence shows that claimant sustained
second-degree burns to “his right upper arm and back,” when his shirt caught on fire while he
was welding at work. The Emergency Treatment Report from Chesapeake General Hospital
reflects that claimant sustained “a 24 x 26 cm area of first and second degree burns to the right
scapular axillary region,” with a final diagnosis of “[a]cute second degree burn right back/arm
measuring 24 x 26 centimeters.”
Claimant was awarded temporary total disability benefits from October 16, 2001 to
January 2, 2002, and again from July 18, 2002 until November 3, 2002. Medical benefits were
awarded for as long as necessary. On April 29, 2003, claimant filed a claim for a permanent
disfigurement rating pursuant to Code § 65.2-503(B)(16). The claims examiner for the
commission determined, after “carefully examining photographs submitted” by the claimant and
after “considering the affected area, and the nature and extent of scarring, that the employee has
sustained a 35% rating to the right upper body and back which provides for compensation
covering 21 weeks.” The parties accepted this rating, and employer paid accordingly.
Three months later, claimant filed the current claim seeking an additional award for
permanent partial disability for the 25% impairment of his right arm. His treating physician,
Dr. Glenn R. Carwell, a plastic and reconstructive surgeon, examined claimant and provided a
letter opinion detailing claimant’s injuries, disabilities and disfigurement. His report stated that
claimant sustained a mixed partial and full-thickness burn of his back, chest and right axilla1 at
1
The axilla, or armpit, is “the cavity beneath the junction of the arm or anterior
appendage and shoulder or pectoral girdle . . . .” Webster’s Third New International Dictionary
153 (2002). It is also defined “as the pyramidal region between the upper thoracic wall and the
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the time of his injury. Dr. Carwell reported that claimant’s injuries, and extensive scarring
related to those injuries, required surgical reconstruction to improve his right shoulder range of
motion. Dr. Carwell assigned a 25% permanent partial disability rating for the impairment to
claimant’s right arm. In a subsequent letter opinion dated June 9, 2003, Dr. Cardwell wrote to
claimant’s counsel that in his earlier opinion he was “addressing range of motion and functional
deficits in [claimant’s] upper extremity. The scarring is, of course, a component of this
disability.”
A deputy commissioner held claimant was entitled to an award for permanent partial loss
of use of his right arm, but reduced the award pursuant to Code § 65.2-503(B)(16) because of the
prior disfigurement award based on the same injury. He found that claimant was entitled to an
additional award of twenty-nine weeks of compensation benefits, after deducting the twenty-one
weeks previously awarded for the disfigurement. Without the deduction for the prior award,
claimant would have been entitled to fifty weeks of compensation benefits for permanent partial
loss of use of his right arm.
A divided commission affirmed the deputy commissioner’s decision. The majority held
that “[i]t is now well settled that an employee is not entitled to benefits for disfigurement and for
loss of use where the disfiguring condition contributes to the loss of use.” It found “[t]he
medical evidence, specifically Dr. Carwell’s reports, establishes [that] the claimant’s
disfigurement rating was not just for scarring to the back but also was for scarring to his arm.”
Additionally, it found that the photographs “submitted by the claimant . . . also show the
disfigurement award was in part for scarring to the arm.” Commissioner Diamond dissented,
stating that the reduction of the loss of use of right arm award “by the entire prior disfigurement
arm, its base formed by the skin and apex bounded by the approximation of the clavicle [collar
bone], coracoid process, and the first rib . . . .” Dorland’s Illustrated Medical Dictionary 179
(29th ed. 2000).
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award” was not justified as the “medical evidence and photograph render it quite clear that a
substantial part of the disfiguring scar is on the claimant’s back and is nowhere near his arm.”
Claimant appealed.
ANALYSIS
I.
On appeal, claimant contends the commission erred in reducing his permanent partial
disability award for loss of use of his right arm by the amount of his initial disfigurement award.
He asserts that the principles of res judicata2 precluded the commission from reviewing and, in
effect, modifying its prior disfigurement award, based on scarring disfigurement to his right
upper body and back, to include scarring to his right shoulder and arm area. The commission
rejected his res judicata argument.
“The doctrine of res judicata is applicable to decisions of deputy commissioners and the
full commission. . . . [and] ‘precludes the re-litigation of a claim or issue once a final
determination on the merits has been reached.’” Rusty’s Welding Serv., Inc. v. Gibson, 29
Va. App. 119, 128, 510 S.E.2d 255, 259 (1999) (en banc) (quoting Gottlieb v. Gottlieb, 19
Va. App. 77, 81, 448 S.E.2d 666, 669 (1994)). Absent fraud or mistake, “the decisions of the
Commission or its deputy commissioners from which no party seeks timely review are binding
upon the Commission.” K & L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299,
302 (1985). The determination of res judicata is a question of law and is reviewed de novo.
Rusty’s Welding Service, 29 Va. App. at 127-28, 510 S.E.2d at 259. As claimant is the party
invoking the doctrine of res judicata, he bears the burden of proving the deputy commissioner
rendered a final judgment in his favor as to issues asserted. Id. at 128, 510 S.E.2d at 259.
2
Res judicata, literally “a thing adjudicated,” is defined as “[a]n issue that has been
definitely settled by a judicial decision.” Black’s Law Dictionary 1336-37 (8th ed. 2004).
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We agree with claimant that the commission’s earlier award for disfigurement, not
appealed to the full commission, and not having been obtained by fraud, mistake or imposition,
was final and not subject to reconsideration. Because the disfigurement award had become final,
claimant argues that reduction of his loss of use award by the amount of the disfigurement
award, in effect, amounts to a modification of an award that had become final. We disagree.
While the prior award to claimant was for scarring disfigurement, the records of that proceeding
before the deputy commissioner, and in particular the reports of the treating surgeon,
demonstrate that the disfigurement award included claimant’s right shoulder area and axilla.
Here, the commission did not seek to review, modify or re-litigate the prior disfigurement
award, but left the disfigurement award undisturbed. The commission simply reduced the
permanent partial disability award for claimant’s loss of use of his right arm by the amount of the
prior disfigurement award consistent with Code § 65.2-503(B)(16).
II.
Claimant also contends that the commission erred in reducing his award for partial loss of
use of his right arm. He contends that it erred in determining that the scarring to his “upper body
and back,” that formed the basis of his disfigurement award, also caused the loss of use of his
“upper extremity/arm.” In short, claimant argues that the disfigurement award was to a different
anatomical part of his body, and therefore not properly the basis for reducing the award for the
partial loss of use of his right arm. Whether the disfigurement award was for a different
anatomical part of the claimant’s body, not related to the partial loss of use of his right arm, is a
factual determination.
On appeal, we are bound by the commission’s factual findings where those findings are
supported by credible evidence in the record. Tomes, 39 Va. App. at 430, 573 S.E.2d at 315
(citing Code § 65.2-706(A)). “In determining whether credible evidence exists, the appellate
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court does not retry the facts, reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses.” Wagner Enterprises, Inc. v. Brooks, 12
Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted).
Code § 65.2-503 provides in pertinent part:
A. Compensation for permanent partial and permanent total loss
and disfigurement shall be awarded as provided in this section.
B. The following losses shall be compensated for the period
specified at the rate of 66 2/3 percent of the average weekly
wage as defined in § 65.2-101:
11. Arm . . . .
16. Severely marked disfigurement of the body not resulting
from an injury otherwise compensated by this section.
(Emphasis added).
The parties do not contest that claimant suffered a serious burn injury while at work and
that, as a result of that injury and necessary surgery, he has disfigurement from scarring, for
which he received compensation benefits under Code § 65.2-503(B)(16). Moreover, they do not
dispute that, as a result of his burn injury and corrective surgery, he has permanent partial loss of
use of his right arm, and that he is entitled to an award for that loss. The dispute on appeal is
whether the commission erred in reducing claimant’s award for partial loss of use of his right
arm by compensation benefits he previously received for the disfigurement award.
The record reflects that the commission based its disfigurement award, as did the deputy
commissioner, on Dr. Carwell’s medical reports, and on examination of the photographs of the
scarred area. Dr. Carwell noted in his medical reports that claimant’s injuries “required skin
grafting and subsequent flap reconstruction to improve his shoulder range of motion.” He stated
that the “loss in strength [in claimant’s right arm] has been consistent for the last six months and
I think is a permanent deficit due to his injuries and the required reconstructive surgery with
extensive scarring.” He later added, “I think that my original letter and report was quite clear
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that I was addressing range of motion and functional deficits in his upper extremity. The
scarring is, of course, a component of this disability.” The commission affirmed the deputy
commissioner’s decision to reduce the award of loss of use, stating that
[I]nspection of the photographs giving rise to the disfigurement
award indicate that the disfigurement award was base[d] upon
scarring to the claimant’s chest, back, and arm. The scarring on
the claimant’s chest and back are in areas contiguous to the
claimant’s arm. It appears movement of the claimant’s arm would
impose stresses on the scarred skin, and that the scarring would
affect the motion of the arm. This conclusion appears consistent
with Dr. Carwell’s opinions.
From Dr. Carwell’s medical reports, and the photographs of the disfigured area, the commission
could reasonably conclude as a matter of fact that claimant’s disfigurement award included the
scarring of his right arm, back and axilla area, and that claimant’s loss of use of his right arm
resulted from the initial scarring and reconstructive surgery. We have noted that “[t]he actual
determination of causation is a factual finding that will not be disturbed on appeal if there is
credible evidence to support the finding.” Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688,
376 S.E.2d 814, 817 (1989).
We conclude that the record before us contains credible evidence to support the
commission’s finding that claimant’s loss of use of his right arm was a result of the extensive
scarring to his right upper back, shoulder and axilla area, and of the subsequent corrective
surgery to that area.
III.
This Court has not previously considered whether the reduction of an award of
compensation benefits for the permanent partial loss of use of a limb, under Code
§ 65.2-503(B)(11), by the amount of a prior award, under Code § 65.2-503(B)(16), for
disfigurement involving the same body part, is permitted. A finding by the commission that an
award, otherwise appropriate under Code § 65.2-503(B)(11), should be reduced by a prior award
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for disfigurement under Code § 65.2-503(B)(16) is a question of law not binding on appeal. See
Thomas Refuse Serv. v. Flood, 30 Va. App. 17, 20, 515 S.E.2d 315, 317 (1999).
In determining whether the commission erred in its application of Code
§ 65.2-503(B)(16) to reduce claimant’s award for permanent partial loss of use of his right arm,
we are guided by rules of statutory construction.
“It is a well established rule of construction that a statute ought to
be interpreted in such a manner that it may have effect, and not
found to be vain and elusive. Every interpretation that leads to an
absurdity ought to be rejected. It is our duty to give effect to the
wording of the statute, and allow the legislative intention to be
followed.”
Barnett v. D.L. Bromwell, 6 Va. App. 30, 34, 366 S.E.2d 271, 273 (1988) (quoting McFadden v.
McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449 (1952)). Moreover, “[w]hen the language in a
statute is clear and unambiguous, we are bound by the plain meaning of that language.” Ratliff
v. Carter Machinery Co., Inc., 39 Va. App. 586, 590, 575 S.E.2d 571, 573 (2003).
Clearly, the General Assembly, in enacting Code § 65.2-503(B)(16) intended that a
claimant should be compensated for severely marked disfigurement.3 However, nothing in the
Act suggests a claimant may be twice compensated for the same injury, once for disfigurement
and once for permanent functional impairment. If the commission had first approved a
permanent partial loss of use award for claimant’s right arm impairment, it would not then, under
3
Disfigurement awards, which are expressly authorized in most states, are closely related
to scheduled loss of use or anatomical loss awards. The thirty-nine states that expressly
recognize disfigurement awards are: Alabama, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, New
Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, and
Wyoming; also Longshoremen’s and Harbor Workers’ Compensation Act, Federal Employees’
Compensation Act, District of Columbia, Virgin Islands, and Puerto Rico. Larson’s Workers’
Compensation Law § 88.01 (2004).
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the plain language of the statute, be able to award full compensation benefits for severely marked
disfigurement of that anatomical area otherwise compensated. Code § 65.2-503(B).
We conclude that, under the plain language of Code § 65.2-503(B)(16), the prohibition
against a dual award for permanent loss of use, or anatomical loss, of a scheduled body part also
applies where the award for disfigurement has previously been awarded for the same anatomical
area. A claimant, however, may obtain an award for permanent loss of use, or anatomical use, of
a scheduled body part where it is not part of the same anatomical area subject to the
disfigurement claim, and vice-versa. In other words, where an injured worker sustains
disfigurement to a different anatomical area other than that for which the permanent loss of use
had been awarded, the employee is entitled to compensation for both the functional disability and
the disfigurement. However, if compensation is awarded for disfigurement of the same
anatomical area where the disfiguring scarring itself contributes to the permanent functional
impairment or loss of use, the disfigurement is part of the functional disability, and the latter
award must be reduced by the former.
Here, the record reflects that pursuant to Code § 65.2-503(B)(16), the commission
awarded claimant compensation benefits for the severely marked disfigurement claimant
sustained to his right upper back and arm, and to his right axilla area. However, the commission
found as a fact that the severely marked disfigurement was part of the same anatomical area for
which claimant then sought to recover additional compensation for permanent loss of use.
Accordingly, when the commission granted the additional award for permanent partial loss of
use of his right arm, it determined, from the photographs of the injury site and the treating
physician’s medical reports, that the functional disability of the his right arm was a result of the
scarring which was the basis of the prior award.
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Although, as previously noted, this Court has not heretofore addressed the issue of
awarding both permanent partial disability and disfigurement awards for the same injury, the
commission has previously noted that an employee is not entitled to both an award for
disfigurement under Code § 65.2-503(B)(16), and an award for a loss of functional use of the
same member under Code § 65.2-503. See Wendell v. Federal Mogul Corporation, 68 O.I.C.
153, 68 Va. WC 153 (1989); Smith v. Lynchburg Foundry, 67 O.I.C. 152, 67 Va. WC 152
(1988). We have consistently held that “the commission’s construction of the Workers’
Compensation Act is entitled to great weight on appeal.” Thomas Refuse Service v. Flood, 30
Va. App. 17, 20, 515 S.E.2d 315, 317 (1999); Wiggins v. Fairfax Park Ltd., 22 Va. App. 432,
441, 470 S.E.2d 591, 596 (1996).4
Courts in other states, which expressly bar a claimant receiving scheduled loss of use
benefits from also receiving any other benefits for the same injury, have addressed this issue in
the context of their statutes. However, “largely due to differences in wording of the
disfigurement statutes, there is a division of opinion on whether an award can be made for both
loss of a member and statutory disfigurement resulting from the same loss.” Larson’s, § 88.02
(2004). For example, courts have held that a claimant is not entitled to both a scheduled loss of
use award and disfigurement award when both arise out of the same injury. See Smith v. Revere
Copper & Brass, Inc., 76 A.2d 147, 149 (Md. 1950) (holding employee “cannot be compensated
both for disfigurement of the arm and for loss of use of it,” but is entitled to whichever is the
greater compensation). See also Wargo v. Industrial Com., 198 N.E.2d 853, 854 (Ill. 1964)
4
We are “mindful that, ‘[w]hile the provisions of the Virginia [Workers’ Compensation]
Act are to be liberally construed to see that [the Act’s] benefits are awarded to injured
employees, that principle [neither] authorize[s] the courts to amend, alter or extend its
provisions, nor . . . require[s] that every claim asserted be allowed.’” Tomes, 39 Va. App. at
430, 573 S.E.2d at 315 (quoting Bowden v. Newport News Shipbuilding & Dry Dock Co., 11
Va. App. 683, 688, 401 S.E.2d 884, 887 (1991)).
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(holding “the commission has no power to award compensation for disfigurement of a member
and also for the loss of use of such member”); Int’l Coal & Mining Co. v. Indus. Com., 127 N.E.
703, 706 (Ill. 1920) (holding that “[t]he commission has no power to award compensation for
disfigurement of a member and also for the loss of use of such member”); Custer v.
Fougerhousse, 112 N.E.2d 584, 586 (Ind. Ct. App. 1953) (affirming scheduled award for
“impairment of 40% to the man as a whole,” but reversed disfigurement award under the Indiana
statute prohibiting additional payment for disfigurement “where compensation is payable
elsewhere in [this statutory] section”); Mouton v. Habetz, 215 So. 2d 363, 366 (La. Ct. App.
1968) (holding employee receiving permanent total disability benefits is not entitled to award for
permanent disfigurement, since the disfigurement provision was only applicable where other
permanent disability payment could not be made); Allen v. E. S. Adkins & Co., 254 A.2d 349,
351 (Md. 1969) (holding compensation for disfigurement caused by the drooping eyelid not
recoverable, since it was the result of an injury for which compensation had been provided);
G & G Steel Erectors, Inc. v. Gutierrez, 683 P.2d 543, 546 (Okla. Ct. App. 1984) (reaffirming
the rule that disfigurement benefits cannot be awarded in conjunction with a scheduled award for
loss of the same body part, but permitting a disfigurement award for surgical scarring from
electrical accident resulting in the employee’s loss of eyesight).
Consistent with the holdings of other states in similar cases, we find the decisions of the
Virginia Workers’ Compensation Commission interpreting Code § 65.2-593(B)(16) to prohibit
an award for compensation for both disfigurement and loss of use, or anatomical loss, of the
same body part, while not controlling, to be persuasive.
Because the record contains credible evidence to support the commission’s factual
finding that claimant’s loss of use of his right arm was a result of scarring from his initial injury
and subsequent reconstructive surgery to his back and upper body, including his right axilla and
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part of his right arm, we conclude that the commission properly reduced claimant’s permanent
partial disability award by the disfigurement award in accordance with Code § 65.2-503(B)(16).
See Smith, 76 A.2d at 149 (holding an employee “is entitled to compensation for either
disfigurement or loss of use, whichever compensation would be greater,” and where the award
for loss of use was greater, then “the compensation already received for disfigurement would be
credited against the total for loss of use”).
IV.
For the above reasons, we conclude that the commission did not err when it reduced its
award for claimant’s loss of use of his right arm by claimant’s previous disfigurement award.
Accordingly, we affirm the award of the commission.
Affirmed.
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