COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia
CYNTHIA ARELLANO
OPINION BY
v. Record No. 0944-97-4 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 3, 1998
PAM E. K'S DONUTS SHOP
AND UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Arturo Hernandez, on brief), for appellant.
Paul S. Stahl, Assistant Attorney General
(Richard Cullen, Attorney General; John J.
Beall, Jr., Senior Assistant Attorney
General, on brief), for appellee Uninsured
Employer's Fund.
No brief or argument for appellee Pam E. K's
Donuts Shop.
Cynthia Arellano contends that the Workers' Compensation
Commission erred (1) in considering an issue on review that was
not raised by either party, and (2) in determining that she had
failed to prove that she sustained a permanent partial
impairment. We affirm the commission's decision.
I.
On January 5, 1993, Arellano slipped on a wet floor in the
course of her employment. On March 1, 1993, she filed a claim
for benefits, alleging injuries to her neck, back and right side.
In her answers to interrogatories, she stated, "I walked towards
a table and slipped. My side of my right ribs hit the end of the
table and I fell back on the floor hurting my back and neck." At
the hearing on her claim, she testified that she tripped on the
end of a table and fell backward, hitting her head, right knee
and side. The commission awarded her compensation for total work
incapacity and, subsequently, for partial work incapacity.
Arellano's January 6, 1993 emergency room report describes
complaints of pain in the lower left anterior chest and base of
the neck. Medical records from Northern Virginia Doctors
Hospital note that x-rays were taken of Arellano's chest, ribs
and cervical spine. The examining physician diagnosed a
contusion on the left rib cage and a neck sprain.
On January 19, 1993, Dr. Inder Bhat examined Arellano
concerning her complaints of generalized aches and pains. Dr.
Bhat noted that neck movements and lower extremities were normal,
arm movements were "ok," and no swelling was detected. He
diagnosed Arellano as suffering from a muscular sprain.
On August 26, 1993, Dr. Julio C. Gonzalez examined Arellano.
He diagnosed her as suffering from headaches, back and neck
pain, all secondary to the trauma, and reported that she
experienced occasional numbness of her right hand. On September
13, 1993, Dr. Gonzalez noted that Arellano complained of residual
pain in the cervical and shoulder area and of some pain in the
lumbosacral area.
On November 21, 1994, Dr. Gonzalez found "a great deal of
tenderness in the lumbosacral area and in the right biceps
femoris and the gastrocnemius." On June 6, 1995, Dr. Gonzalez
noted some tenderness of the left lumbar area. In a follow-up
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visit on June 29, 1995, Arellano complained of numbness in her
right hand and leg. Dr. Gonzalez noted tenderness in the lumbar
and dorsal interscapular areas. On July 23, 1996, Dr. Gonzalez
noted tenderness in the right trapezius, sacroiliac joint and
knee and a weak right hand grip.
On December 18, 1995, Arellano filed an application seeking
a change in treating physicians and compensation for permanent
impairment of the left knee and leg. At the hearing before the
deputy commissioner on September 9, 1996, Arellano testified that
she had injured her left knee and hand. By letter dated that
same day, Dr. Gonzalez stated that Arellano "has reached maximum
medical improvement [and] will be entitled to 25% partial
permanent impairment of left lower extremity and 25% partial
impairment for left upper extremity due to pain, reduced function
and stamina" as a result of injuries to her cervical and lumbar
spine.
The deputy commissioner determined that Dr. Gonzalez was the
treating physician and that Arellano had incurred a 25% permanent
loss of capacity in her left leg and arm as a result of the
January 5, 1993 work place accident. The Uninsured Employer's
Fund sought full commission review of the deputy commissioner's
finding that Dr. Gonzalez was Arellano's treating physician. The
full commission affirmed that finding but vacated the award for
permanent partial disability benefits.
II.
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Neither the employer nor the Uninsured Employer's Fund
sought review of the deputy commissioner's ruling that Arellano
had proved a 25% permanent impairment of her upper and lower left
extremities. Arellano contends that the commission erred in
considering this issue on review. We disagree.
"The commission has statutory authority to 'make rules and
regulations for carrying out the provisions of [the Act].'"
Ratliff v. Rocco Farm Foods, 16 Va. App. 234, 237, 429 S.E.2d 39,
41 (1993) (citing Code § 65.2-201(A)). "Because the [commission]
promulgates these rules and has the obligation and right to
enforce them, we would prefer that it have the first opportunity
to construe its own rules." Brushy Ridge Coal Co. v. Blevins, 6
Va. App. 73, 78 n.2, 367 S.E.2d 204, 206 n.2 (1988). We accord
great deference to the interpretation given by the commission to
its rules. "Consequently, our review is limited to a
determination whether the commission's interpretation of its own
rule was reasonable." Classic Floors, Inc. v. Guy, 9 Va. App.
90, 93, 383 S.E.2d 761, 763 (1989).
Rule 3.1 of the Rules of The Virginia Workers' Compensation
Commission provides, in pertinent part:
A request for review should assign as
error specific findings of fact and
conclusions of law. Failure of a party to
assign any specific error in its request for
review may be deemed by the Commission to be
a waiver of the party's right to
consideration of that error. The Commission
may, however, on its own motion, address any
error and correct any decision on review if
such action is considered to be necessary for
just determination of the issues.
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Rule 3.1 directs that a request for review should specify
the legal and factual determinations to which exception is taken.
That requirement, however, is not "jurisdictional in nature,
mandating that the commission disregard other errors that may be
made by the deputy commissioner." Blevins, 6 Va. App. at 78, 367
S.E.2d at 206 (footnote omitted). Rule 3.1 provides that the
commission may, sua sponte, "address any error and correct any
decision on review." That authority hinges upon the commission's
determination that consideration of an issue not raised by the
parties is "necessary for just determination of the issues." The
commission, however, must act reasonably in exercising its
discretion to undertake review of matters not raised by the
parties.
A single award may not be segmented into
component parts, some of which are final
dispositions and others of which are not. An
appeal of a deputy commissioner's award
empowers the [commission] to reexamine all of
the deputy commissioner's conclusions.
Mace v. Merchants Delivery Moving & Storage, 221 Va. 401, 404
n.3, 270 S.E.2d 717, 719 n.3 (1980).
On review, the commission routinely considers matters that
are germane to the issues specifically on review. See Classic
Floors, 9 Va. App. at 94, 383 S.E.2d at 763; The Greif Companies
v. Sipe, 16 Va. App. 709, 713-14, 434 S.E.2d 314, 317 (1993). We
conclude that Rule 3.1 permits the commission, in the interest of
justice, likewise to consider issues not specified in the request
for review.
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In reviewing this case, the commission found that the award
for permanent partial disability was incorrect. The
reasonableness of the commission's consideration of the deputy
commissioner's finding was rooted in its obligation to correct an
erroneous award. Accordingly, we find that the commission acted
properly in reviewing the permanent partial disability award.
III.
On appeal, we review the evidence in the light most
favorable to the party prevailing. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Having reviewed the record, we cannot state as a matter of law
that Arellano sustained her burden of proving a 25% permanent
impairment of her left upper and lower extremities that was
causally related to her compensable injury by accident.
Therefore, the commission's finding is binding and conclusive
upon us. See Tomko v. Michael's Plastering Co., 210 Va. 697,
699, 173 S.E.2d 833, 835 (1970).
Arellano made no complaint of a left leg or left arm injury
either at the time of her initial medical treatment, or when she
filed her initial claim. She made no complaint of a left leg or
left arm injury during the 1993 and 1995 evidentiary hearings.
When she filed her claim in 1995, she alleged for the first time
an injury to her left leg, but made no mention of injury to her
left arm.
Dr. Gonzalez began treating Arellano in August, 1993. His
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office notes at that time reflected no injury to or treatment of
Arellano's left knee or left arm. Not until immediately prior to
the September 9, 1996 hearing did Dr. Gonzalez refer to a
permanent partial disability in the left upper and lower
extremities and opine that those extremities were injured when
Arellano injured her cervical and lumbar spine.
Apart from Dr. Gonzalez's letter, no objective medical
evidence substantiates an injury to or loss of use of Arellano's
left leg or left arm causally related to her injury by accident.
In its role as fact finder, the commission was entitled to
reject Dr. Gonzalez's opinion, rendered for the first time on the
day of the hearing. "Medical evidence is not necessarily
conclusive, but is subject to the commission's consideration and
weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App.
675, 677, 401 S.E.2d 213, 215 (1991) (citation omitted).
We affirm the decision of the commission.
Affirmed.
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