COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
GUNST CORPORATION and
RELIANCE INSURANCE COMPANY
OPINION BY
v. Record No. 1530-98-2 JUDGE JAMES W. BENTON, JR.
MAY 18, 1999
ALICE LEE CHILDRESS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy, III (Sands, Anderson,
Marks & Miller, on brief), for appellants.
B. Mayes Marks, Jr., for appellee.
The Workers' Compensation Commission awarded Alice Lee
Childress compensation for permanent total incapacity pursuant to
Code § 65.2-500. Gunst Corporation and Reliance Insurance
Company, whom we designate "Gunst," contend (1) the medical
evidence was insufficient to prove that Childress reached maximum
medical improvement and (2) the commission improperly ruled that
Childress met her burden of proving entitlement to compensation
for permanent total incapacity. For the reasons that follow, we
affirm the award.
I.
The evidence at the evidentiary hearing proved that Alice
Lee Childress worked for Gunst as a food shop manager where she
prepared meals, stocked supplies, and performed other duties.
Childress was fifty-six years of age, had a ninth grade
education, and had never received any vocational training. When
she began working for Gunst, she received on-the-job training.
As the food shop manager, Childress was required to stand eight
hours per day and lift containers as heavy as sixty-five pounds.
On May 31, 1989, Childress suffered a compensable injury by
accident to both of her knees.
After her injury, Childress returned to light duty work as
a receptionist. However, she underwent arthroscopic surgery on
her left knee on August 8, 1989, and on her right knee on
December 3, 1990. In 1991, Dr. Kennedy S. Daniels performed a
bilateral total knee replacement surgery. Childress later
returned to her receptionist position; however, she could only
walk or stand for short periods. All projects and materials
necessary to perform her tasks were brought to her desk by
co-workers. Childress then began working part-time. Gunst
accepted responsibility for the injury and paid Childress
compensation under a series of awards for temporary total
incapacity and temporary partial incapacity.
In March 1992, Childress underwent arthroscopic repair of
her right knee. Childress began treatments with Dr. Richard
Worland and had another revision surgery on her right knee in
May. As a result of her knee injuries, Childress began to
suffer from lower back pain. Dr. Hallett Mathews, who began
treating Childress in 1992, opined that Childress' "swing [gait]
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has caused her low back to wear out extensively" and noted that
she "will see degeneration in time." He later reported a direct
connection between Childress' knee problems and spinal
deterioration.
In November 1992, Dr. Worland opined that Childress "has
reached her maximum [medical] improvement." A month later, Dr.
Worland "rate[d] the permanent disability regarding [Childress']
lower extremities . . . at 50% of each leg." He also noted that
her condition likely caused her to be "100% unfit for gainful
employment other than a total sedentary position." On March 25,
1993, the commission approved a memorandum of agreement and
awarded Childress permanent partial loss of use benefits
pursuant to Code § 65.2-503 based upon "50% loss of use of the
left and right legs."
Childress continued to receive treatments for her leg and
back injuries. Dr. Mathews performed a lumbar
laminectomy-decompression in June 1996. After this procedure,
Childress continued to have lower back pain which had a
radiating effect on her lower extremities. Childress testified
that she has been unable to work since the spinal fusion surgery
to her back. In 1996, Dr. Mathews reported that Childress' back
injury is now "a chronic condition which has not and will not be
resolved surgically" and noted that Childress was "100% disabled
from any working occupation . . . both now and permanent for the
future."
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Due to continuing knee problems, Childress also underwent a
total revision of the right knee replacement in November 1996.
Dr. Worland testified that Childress would need further
replacement surgery. He also testified that he anticipated
eventual amputation of Childress' legs above her knees. On May
13, 1996, finding that 500 weeks of compensation benefits had
been paid, the commission terminated the awards for permanent
partial and temporary partial benefits. See Code § 65.2-502.
Childress filed a claim in 1996 for compensation for
permanent total incapacity from work. Gunst denied the claim,
asserting that Childress "had not reached maximum medical
improvement" and that "the medicals do not support the claim for
permanent total benefits." After an evidentiary hearing on
Childress' claim for compensation for permanent total
incapacity, the deputy commissioner ruled that Childress had:
(1) reached maximum medical improvement, (2) received a
permanent partial loss of use rating of 50% to both the right
and left lower extremities, and (3) become disabled from using
her legs to any substantial degree in any gainful employment.
Thus, the deputy commissioner entered an award for lifetime
permanent total incapacity compensation. The full commission
affirmed the deputy commissioner's decision, ruled that
Childress was permanently and totally disabled under the Act,
and modified the beginning date for the benefits to commence on
October 27, 1996.
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II.
Gunst contends the evidence proved Childress is prevented
from working solely because of pain and weakness from her back.
Thus, Gunst posits that the commission "wrongly concluded that
Childress established that both conditions generating the pain
in her legs, her back and her knees, upon the combination of
which Dr. Worland concluded that she should not work, had
reached [maximum medical improvement]." We disagree.
The principle is well established that "[w]here, as here,
an employee suffers the loss of use of a scheduled body member,
the compensation provided by [Code § 65.2-503] is not awardable
'until the injury has reached a state of permanency, i.e.
maximum improvement, when the degree of loss may be medically
ascertained.'" County of Spotsylvania v. Hart, 218 Va. 565,
568, 238 S.E.2d 813, 815 (1977) (citation omitted). Thus,
before the commission may award benefits pursuant to the
schedule in Code § 65.2-503 for the loss of use of a body
member, "it must appear both that the . . . [loss or loss of
use] is permanent and that the injury has reached maximum
medical improvement." Id. The commission has consistently
ruled that an employee has reached maximum medical improvement
if no reasonable expectation exists that the employee will
obtain further functional improvement from medical treatment,
even though the injury remains symptomatic and disabling. See
e.g. Billings v. King Electric, Inc., VWC File No. 157-39-38,
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n.1 (October 24, 1995). See also 4 Larson, Workers'
Compensation Law § 57.12(b) and (c) (1998).
The commission's determination that maximum medical
improvement has been reached is a factual finding. See Cafaro
Construction Co. v. Struther, 15 Va. App. 656, 660, 426 S.E.2d
489, 492 (1993). Pursuant to statute, the commission's factual
findings are conclusive and binding on this Court when those
findings are based on credible evidence. See Code § 65.2-706;
McCaskey v. Patrick Henry Hospital, 225 Va. 413, 415, 304 S.E.2d
1, 2 (1983). Furthermore, in our review, we are required to
construe the evidence in the light most favorable to the party
who prevailed before the commission. Crisp v. Brown's Tysons
Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916
(1986).
Applying these principles, we note, as the commission
found, the record is undisputed that in 1993 Childress was
awarded benefits under Code § 65.2-503(B) for loss of use of her
legs. She was not seeking another award in 1996 for a scheduled
loss under Code § 65.2-503(B). In 1992, Dr. Worland had opined
that Childress would not further improve in her ability to use
her left and right legs. The commission noted that Gunst joined
in a memorandum of agreement establishing Childress' ratable
permanency. In accordance with that agreement, the commission
entered an award in 1993 granting Childress permanent partial
loss of use benefits based upon "50% loss of use of [her] legs."
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The commission's award was a tacit finding and acknowledgement
of Gunst's agreement that Childress had reached maximum medical
improvement. See Code § 65.2-706 ("The award of the Commission
. . . shall be conclusive and binding as to all questions of
fact."); see also Hart, 218 Va. at 568, 238 S.E.2d at 815
(holding that the benefit "provided by [Code § 65.2-503] is not
awardable 'until the injury has reached a state of permanency,
i.e. maximum improvement'").
The commission's finding that Childress had reached maximum
medical improvement was based on Dr. Worland's unequivocal
report. Dr. Worland also linked Childress' inability to walk to
both her knee injury and the pain she suffers when walking
because of the back injury. In addition, Dr. Mathews opined
that Childress' back condition, which resulted from her leg
injury, would not improve and was a chronic condition that could
not be resolved surgically. The commission found to be credible
Dr. Worland's report that Childress would not have further
functional improvements to her legs. The commission also
accepted as credible Dr. Worland's and Childress' testimony that
pain limited Childress' ability to walk. Thus, the evidence
supports the commission's finding that Childress' disability in
her legs is not based solely on pain.
We further note that in his testimony in 1997, Dr. Worland
reconfirmed his opinion that Childress had reached maximum
medical improvement. He also then opined that Childress cannot
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use her legs to any substantial degree in employment.
Furthermore, Dr. Mathews also reported that Childress is "100%
disabled from any working occupation . . . both now and in the
future."
Accordingly, we hold that the record supports the
commission's finding that Childress had reached maximum medical
improvement regarding the injury to her legs.
III.
As the Supreme Court reiterated in Georgia-Pacific Corp. v.
Dancy, 255 Va. 248, 497 S.E.2d 133 (1998), "'[t]he phrases
"total and permanent loss" or "loss of use" of a leg do not mean
that the leg is immovable or that it cannot be used in walking
around the house, or even around the block. They do mean that
the injured employee is unable to use it in any substantial
degree in any gainful employment.'" Id. at 252, 497 S.E.2d at
135 (quoting Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850,
857, 80 S.E.2d 537, 541 (1954)).
The record contains evidence from Childress, Dr. Worland,
and Dr. Mathews, which the commission found to be credible,
establishing that Childress was permanently and totally
incapacitated from all gainful employment.
We do not retry the facts before the
Commission nor do we review the weight,
preponderance of the evidence, or the
credibility of witnesses. If there is
evidence or reasonable inference that can be
drawn from the evidence to support the
Commission's findings, they will not be
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disturbed by this Court on appeal, even
though there is evidence in the record to
support contrary findings of fact.
Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d
507, 510-11 (1983).
Dr. Mathews opined that Childress is "100% disabled from
any working occupation . . . now and permanently for the
future." Dr. Worland extensively testified by deposition in
1997 concerning Childress' limitations and opined that Childress
"is not fit for gainful employment" and would not be so in the
future. The commission's opinion referenced in detail Dr.
Worland's testimony. Childress' testimony also established her
physical limitations and inability to work. See Chrisley, 195
Va. at 857-60, 80 S.E.2d at 541-43; Morris v. Pulaski Veneer
Corp., 183 Va. 748, 754-55, 33 S.E.2d 190, 193 (1945). This
evidence supports the commission's finding that Childress'
injury by accident "has rendered her unable to use her legs to
any substantial degree in any gainful employment."
Accordingly, we affirm the commission's award.
Affirmed.
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