COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Bray and Senior Judge Hodges
GIANT FOOD, INC.
AND
STANDARD FIRE INSURANCE COMPANY
v. Record No. 2021-94-4 MEMORANDUM OPINION *
PER CURIAM
WILLIAM ROBBINS MAY 9, 1995
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Roger S. Mackey, on brief), for appellants.
(Metin A. Cay; Swiger & Cay, on brief), for appellee.
Giant Food, Inc. (employer) contends that the Workers'
Compensation Commission (commission) erred in finding that
William Robbins (Robbins) (1) proved permanent and total
disability pursuant to Code § 65.2-503 as a result of the loss of
use of both of his legs; (2) proved he could not use his
effective members in gainful employment; and (3) established a
physical change in condition from the time he entered into the
Memorandum of Agreement. 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
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decision. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Because employer's first two questions presented relate to
the issue of Robbins' entitlement to permanent and total
disability benefits, we will address them as one issue in this
opinion. We will not address employer's third question
presented, because it was not raised before the commission.
On appeal, we view 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). "[I]t
is fundamental that a finding of fact made by the Commission is
conclusive and binding upon this court on review. A question
raised by conflicting medical opinion is a question of fact."
Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533
(1990).
Robbins sustained a compensable back injury on May 10, 1984.
Thereafter, he underwent extensive treatment, including several
unsuccessful surgeries. Robbins received 500 weeks of temporary
total disability benefits. On September 3, 1993, Robbins filed
an application seeking permanent total disability benefits and
permanent partial disability benefits based on a 75% permanent
loss of use of each leg. Robbins testified that he suffers from
extreme pain in his back that radiates into his legs. The leg
pain is intense and affects his ability to walk, bend, or sit.
Robbins came under the care of Dr. Donald L. MacNay, an
orthopedic surgeon, on June 8, 1984. On August 9, 1993, Dr.
MacNay rated Robbins as suffering from a 75% disability in both
lower extremities as a result of the industrial accident and the
numerous failed surgeries. Dr. MacNay reported atrophy below the
knee on both of Robbins' legs, weakness, loss of strength, and
instability. Dr. MacNay opined that "[o]n a functional level he
remains totally disabled for any form of sustained employment
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whatsoever."
Anthony Bird, a vocational rehabilitation counselor, opined
that, based upon his knowledge of the job market where Robbins
resides and Robbins' medical history and condition, Robbins is
not a candidate for competitive employment.
The commission found that Robbins suffered from a 75%
permanent loss of use of each leg and that he had reached maximum
medical improvement. The commission also found that Robbins was
permanently and totally disabled from engaging in any gainful
employment due to the permanent loss of use of his legs.
Substantial credible evidence, including Robbins' testimony,
Bird's testimony, and the reports and opinions of Dr. MacNay,
support these findings.
The commission, in its role as fact finder, was entitled to
give greater weight to Dr. MacNay's opinion than that of Dr. Ian
Wattenmaker, who examined Robbins at employer's request. The
treating physician's opinion is entitled to be given great
weight. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435,
439, 339 S.E.2d 570, 572 (1986). Moreover, Robbins was not
required to show that his legs were immovable or could not be
used in walking around the house, rather he was required to prove
that he was unable to use his legs in any substantial degree in
any gainful employment. See Virginia Oak Flooring Co. v.
Chrisley, 195 Va. 850, 857, 80 S.E.2d 537, 541 (1954). Robbins
presented credible evidence that met this burden.
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Accordingly, the commission's finding that Robbins is
permanently and totally disabled pursuant to Code § 65.2-503 is
binding and conclusive upon us on appeal.
Affirmed.
4