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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