Opinion
Record No. 1065-94-2
Decided: March 14, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Richard H. Milnor (Taylor, Zunka, Milnor Carter, Ltd., on brief), for appellants.
(Norman Lamson, on brief), for appellee.
Present: Chief Judge Moon, Judge Elder and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
First Choice Auto RV Center and Selective Insurance Company of America (employer) appeal from the full commission's award of benefits to Larry P. Bowles (claimant). Employer contends that it is entitled to offset claimant's loss of use in his left leg by his measurable pre-employment loss of use, thereby reducing the level of disability attributable to the employment and correspondingly lowering the compensation benefits due. Because the commission relied on credible medical evidence to determine claimant's post-accident disability rating, we affirm the commission's decision.
On August 28, 1992, claimant, a salesman for employer, refractured his left leg in a work-related car accident. Claimant's left leg had previously been injured and never healed properly. The deputy commissioner's on-the-record decision relied on records submitted by Dr. Robert McLaughlin, claimant's operating and treating orthopedic surgeon. Dr. McLaughlin assigned claimant a 7.5% loss of use rating on his left leg based on loss of use from the prior mal-united fracture and a 7.5% loss of use rating based on the disability from the August 28, 1992 fracture. Dr. McLaughlin stated that claimant had reached maximum medical improvement. Based on Dr. McLaughlin's diagnosis, the deputy commissioner held that employer was not responsible for the pre-existing 7.5% loss of use, but was responsible for the remaining 7.5%.
The full commission awarded claimant 43.75 weeks of permanent partial loss of use of the left leg based on its finding that claimant suffered a 25% loss of use as a result of the August 28, 1992 accident. The commission did not specify the amount of credit given employer for the pre-existing loss of use. The commission's decision was based on a four-page report by Dr. Michael Kovac, a non-treating orthopedic surgeon. Dr. Kovac attributed a 21% permanent loss of use to the loss of flexion in claimant's leg, and an additional 4% loss of use due to the additional shortening of the left leg. Dr. Kovac never specified how much loss of use claimant had suffered before the August 28 accident, but he did recognize that there was some amount of pre-existing loss of use above the 25%.
After reviewing the record, we affirm the full commission's award in favor of claimant and hold that the commission did not err in determining the loss of use rating which reflected claimant's post-accident permanent partial disability.
"It 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 (1986) (citations omitted). "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
We are also guided by various provisions found in the Workers' Compensation Act. Code Sec. 65.2-503(D) "provides proportional compensation for partial loss or loss of use of a member. . . . [A] numerical rating is required so that benefits may be proportionally awarded according to the percentage loss . . . ." Hill v. Woodford B. Davis General Constr., ___ Va. App. ___, ___, 447 S.E.2d 237, 237-38 (1994). Additionally, Code Sec. 65.2-505 states that an employer is relieved "from liability for that portion of a compensable injury that pre-existed the employer-employee relationship and the injurious work-related exposure." Virginia Fibre Corporation v. Moore, ___ Va. App. ___, ___, 440 S.E.2d 432, 434 (1994).
In this case, we cannot say that the commission was plainly wrong in finding that claimant suffered a 25% loss of use attributable solely to his August 28, 1992 work-related accident. We reject employer's contention that the commission was required to accept the 7.5% permanent partial disability rating supplied by Dr. McLaughlin. Dr. Kovac believed that claimant's "pre-existent angulated mal-union" was unrelated to the loss of flexion of the right knee and to the shortening directly attributable to the [August 28, 1992] fracture and should in no way lessen the 25% permanent partial impairment of the left lower extremity due to the work-related fracture of [August 28, 1992].
However, while Dr. McLaughlin ascribed an explicit pre-accident loss of use rating, Dr. Kovac chose not to specify such a rating beyond the 25% post-accident rating already assigned.
In its role as fact finder, the commission was entitled to accept Dr. Kovac's assertion that any specific pre-existing disability value would have exceeded the 25% disability value he attributed to claimant's work-related fracture. It would have been unnecessary for the commission to make an explicit, numerical determination of claimant's pre-accident disability value, because employer was implicitly credited with any disability value above 25%, whatever that actual figure may have been.
The commission had before it credible evidence on which to base its award of compensation. Because the commission neither misinterpreted the applicable statutes nor applied an incorrect burden of proof, its decision is affirmed.
Affirmed.