Leadbetter, Inc. v. Penkalski

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Fitzpatrick, Annunziata and
Overton
Argued at Richmond, Virginia

LEADBETTER, INC.
AND PENNSYLVANIA MANUFACTURERS
INDEMNITY INSURANCE COMPANY OPINION BY
JUDGE JAMES W. BENTON, JR.
v. Record No. 1457-94-2 DECEMBER 19, 1995

BENJAMIN PENKALSKI

UPON REHEARING EN BANC

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

S. Vernon Priddy, III (Jennifer G. Marwitz;
Sands, Anderson, Marks & Miller, on brief),
for appellants.

Malcolm Parks, III (Susan Elaine Sieger;
Maloney, Barr & Huennekens, on brief),
for appellee.

Leadbetter, Inc. and its insurer appeal from the

commission's award of temporary total disability benefits to

Benjamin Penkalski. Leadbetter contends the commission erred in

(1) failing to apply the rule of American Furniture Co. v. Doane,
230 Va. 39, 334 S.E.2d 548 (1985), (2) applying the "two causes

rule" in awarding temporary total benefits, (3) concluding that

Penkalski's work-related injury by accident partially caused his

inability to perform light duty work, (4) finding that any amount

of partial disability attributable to the injury by accident

supports the award because it contributes to Penkalski's

temporary total disability, (5) finding that part of Penkalski's

loss of earning capacity is attributable to the compensable
injury by accident, and (6) ruling that Penkalski had no

obligation to market his residual work capacity. A panel of this

Court, with one judge dissenting, reversed the commission's

award. See Leadbetter, Inc. v. Penkalski, 20 Va. App. 454, 457

S.E.2d 790 (1995). This Court granted Penkalski's petition for a

rehearing en banc. For the reasons that follow, we affirm the

commission's award.

The parties stipulated many facts of this case and generally

do not dispute the material facts. Viewed in the light most

favorable to Penkalski, who prevailed before the commission, see
R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390

S.E.2d 788, 788 (1990), the evidence proved that in April 1991

Penkalski fell and broke both ankles while employed by

Leadbetter. His injuries required surgery and other

rehabilitation. Pursuant to a memorandum of agreement, Penkalski

received an award for temporary total disability benefits.

Under the treatment of Dr. E. Claiborne Irby, Jr., the

attending physician, Penkalski made progress and was able to walk

following surgery. His rehabilitation after surgery involved

exercising his ankles daily as directed by Dr. Irby. With Dr.

Irby's permission, Penkalski began performing restricted light

duty selective work for Leadbetter in September 1991. Throughout

1991 and 1992, Dr. Irby reported that Penkalski continued to

experience swelling, aching, and discomfort. The doctor ordered

him to continue daily stretching and other ankle exercises. In

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addition, Dr. Irby reported that Penkalski suffered a 30%

permanent partial loss of function of the left leg and a 20% loss

of function of the right leg. The commission awarded Penkalski

87.5 weeks of permanent partial disability benefits for the loss

of function of the legs.

As of December 10, 1992, Penkalski was performing

restrictive light duty selective work for Leadbetter within the

limitations outlined by his doctor. On December 11, 1992,

Penkalski suffered a heart attack. Following Penkalski's heart

attack, another doctor performed an angioplasty. During that

procedure, arterial plaque was loosened and settled in

Penkalski's toes and feet and caused injury to his toes and feet.

Penkalski suffered ischemia of his feet and lost additional

function of his feet as a consequence of his ischemia. The heart

attack, the ischemia of the feet, and the treatment for those

conditions were not a result of Penkalski's compensable accident

and were not work related. However, Penkalski was still disabled

by his ankle injuries when he had the heart attack, and he had

received orders from Dr. Irby to regularly exercise his ankles.
Further complications from the loosened arterial plaque

resulted in the amputation of parts of Penkalski's toes.

Confined to a wheelchair by the heart attack and the resulting

complications, Penkalski could no longer perform the exercises

prescribed by Dr. Irby. The condition of his ankles

deteriorated, increasing his disability.

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 In September 1993, both Dr. Irby and Dr. John T. Funai

reported that Penkalski was totally disabled. Dr. Irby found the

total disability resulted from "two causes, one of which is work

related and one which is not." Dr. Funai opined that "the

combination of [Penkalski's] cardiac condition and the potential

loss of a foot prohibits any future employment." Since April 9,

1991, Penkalski has been incapacitated at all times, has been

unable to perform the full range of his pre-injury duties, and

has suffered chronic pain and swelling in his ankles.
Penkalski's entitlement to permanent partial disability

benefits ended September 30, 1993. Because he received no

additional disability benefits from Leadbetter, Penkalski filed a

change in condition application for benefits. Based upon Dr.

Irby's reports, the deputy commissioner found that the evidence

proved that Penkalski's "disability has two causes, one related

to employment and one not related." Relying on decisions from

the Supreme Court and this Court, the deputy commissioner entered

an award in favor of Penkalski. On review, the commission

affirmed the deputy commissioner's award.

An employee is entitled to recover compensation for an

aggravation or exacerbation of a compensable injury by accident

even when the event that caused the aggravation or exacerbation

did not involve the workplace. Fairfax Hospital v. DeLaFleur,

221 Va. 406, 409, 270 S.E.2d 720, 722 (1980). See also Wilson v.
Workers' Compensation Comm'r, 328 S.E.2d 485, 489 (W. Va. 1984);

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1 Arthur Larson, The Law of Workmen's Compensation, §§ 13.00-

13.24 (1994). "It is well established that where . . . the chain

of causation from the original industrial injury to the condition

for which compensation is sought is direct, and not interrupted

by any intervening cause attributable to the [employee's] own

intentional conduct, then the subsequent [condition] should be

compensable." American Smelting & Refining Co. v. Industrial

Comm'n, 544 P.2d 1133, 1135 (Ariz. Ct. App. 1976). See also
Department of Highways v. McCoy, 193 S.W.2d 410, 412 (Ky. 1946)

(an employee who suffered a work-related hernia was entitled to

receive compensation for an aggravation of the hernia caused by

the inability to operate due to a subsequently developed

unrelated onset of tuberculosis). Recovery of compensation for a

subsequent aggravation is barred only if the subsequent

aggravation "is the result of an independent intervening cause

attributable to [the employee's] own intentional conduct." 1

Larson, supra, § 13.00. Numerous courts have recognized this

principle with factual variations "but as long as the causal

connection is in fact present the compensability of the

subsequent condition is beyond question." Id. § 13.11(b)

(footnote omitted).

Another well-established principle holds that "where a

disability has two causes: one related to the employment and one

unrelated [to the employment] . . . full benefits will be

allowed." Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d

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801, 803 (1981). This principle requires the commission to award

compensation because "the employment is a contributing factor to

the disability." Id.; see also Smith v. Fieldcrest Mills, Inc.,

224 Va. 24, 28-29, 294 S.E.2d 805, 807-08 (1982). These two

principles intersect in this case and mandate an affirmance of

the commission's decision.

Dr. Irby reported that complications resulting from the

heart operation caused Penkalski to suffer foot and toe problems.

The severity of those problems prevented Penkalski from

exercising his ankles and resulted in a marked decrease in his

ankle motion. Thus, the condition of Penkalski's ankles

deteriorated. As a consequence, Dr. Irby initially barred him

from "doing any job where he has to do prolonged standing or

walking due to his ankles." In September 1993, Dr. Irby reported

that Penkalski was totally disabled from any employment as a

result of his work-related injury and the exacerbation of that

injury. Based upon Dr. Irby's reports, the commission found that

Penkalski's foot ischemia exacerbated and worsened his work-

related ankle disability. In addition, the commission found that

Penkalski was totally disabled. This Court must defer to the

commission's findings because they are based on Dr. Irby's

reports and other credible evidence in the record. See Rose v.

Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396

S.E.2d 392, 395 (1990).
American Furniture Co. v. Doane, 230 Va. 39, 334 S.E.2d 548

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(1985), is not an impediment to upholding the award. In Doane,

the employee suffered a work-related injury to her back. After

the employee had surgery and recovered, the attending physician

released the employee to return to light duty work. Id. at 41,

334 S.E.2d at 549-50. The employee failed to report for light

duty work because of impairments to her hand and arm that were

"unrelated" to the back injury. Id. The two conditions were

"unrelated" because they neither flowed from the same work-

related cause nor resulted in disability to the same body member.

Thus, the Court held that "Doane failed to carry her burden of

persuasion to show the necessary causal connection between her

arm impairment and her compensable injury." Id. at 43, 334

S.E.2d at 550-51.

In Eppling v. Schultz Dining Programs, 18 Va. App. 125, 442

S.E.2d 219 (1994), this Court applied Doane in a case where an

employee was terminated because of excessive absences caused by

health problems that were "unrelated" to her work-related injury.
Id. at 128, 442 S.E.2d at 221. No evidence in that case proved

that Eppling's "unrelated" problem had exacerbated or aggravated

the work-related injury.

Dr. Irby's report clearly states the relationship between

the complications that resulted from the heart attack and the

work-related injury. The evidence proved that after the arterial

plaque settled in his feet and caused complications, Penkalski

could not perform the ankle exercises previously prescribed for

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him by Dr. Irby and he suffered additional disability. Thus, the

commission had a medical basis upon which to conclude that as a

result of Penkalski's heart attack, Penkalski suffered severe

injuries to his feet, was unable to continue his exercises, and

lost significant and additional motion in his injured ankles.

Dr. Irby's report stated that Penkalski was "disabled from any

work that requires prolonged standing and walking." He further

reported that the disability resulted from two causes, "one is

work-related and one is not." In addition, the commission

specifically quoted from Dr. Irby's May 27, 1993, report in

finding that Penkalski had proved that the non-work-related

condition contributed to and aggravated his compensable injury.
When, as in this case, the medical evidence proved that the

work-related disability was aggravated or exacerbated by the non-

work-related problem, the resulting disability is compensable.

Bergmann, 222 Va. at 32, 278 S.E.2d at 803. Furthermore, Dr.

Irby's medical opinion established that Penkalski's inability to

perform sustained standing and walking was a disability that had

two causes. One cause was the worsening condition of Penkalski's

ankles, the work-related injury.

Leadbetter has failed to show the commission committed

error. Credible evidence supports the commission's finding that

Penkalski's total disability is due in part to his work-related

injury. The medical evidence supports the award of temporary

total disability. Therefore, we affirm the commission's decision

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and vacate the prior panel decision.

Affirmed.

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