Opinion
Record No. 2251-91-3
September 29, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(J. Gorman Rosenberger; Wilson, Garbee Rosenberger, on briefs), for appellants.
(P. Scott DeBruin; Joseph R. Johnson, Jr. Associates, on brief), for appellee.
Present: Chief Judge Koontz, Judges Baker and Elder.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As counsel are familiar with the facts of this case, we recite them only as necessary to explain our decision.
Lynchburg Foundry Company and its insurer contend that the commission erred in finding that Georgia Bennett Tucker suffered a ten per cent permanent disability of her right foot. Specifically, they contend that the disability finding cannot stand because it was based solely on the existence of pain in the foot.
On appellate review, we will construe 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), and uphold the findings of fact made by the commission of supported by credible evidence, James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989).
We agree with appellants' contention that pain cannot result in disability. In Commonwealth v. Powell, 2 Va. App. 712, 347 S.E.2d 532 (1986), the claimant, a prison guard, suffered stab wounds resulting in nerve damage to his left shoulder. However, we based our affirmance of the award to Powell not on the existence of nerve damage but on this testimony from Dr. Brush:
[T]he muscles actually shut down and give away and those muscles can't work under real stress maximum circumstances and he works as a correctional officer and I've been very leery that he could get into an altercation with a prisoner and have to use his left arm forcefully and its not going to be able to work in that sense because of the pain.
Id. at 715, 347 S.E.2d at 534 (emphasis added).
Here, Tucker's foot was crushed, resulting in scarring and the need for orthopedic devices. Dr. Eschenroeder opined that the residual pain from the injury resulted in a ten per cent permanent disability. The commission accepted Eschenroeder's opinion.
Appellants rely on the commission's language in Young v. Westmoreland Coal Co., I.C. No. 106-66-86 (November 15, 1990), to support their position:
Code section 65.1-56 provides compensation benefits upon proof of loss of use of a member. There is no provision in the Act for compensation for pain alone and unless pain is shown to be a specific inhibiting factor causing loss of use, there is no basis for an award of compensation under section 65.1-56.
(Emphasis added.) We certainly recognize that pain can, at times, act as a nuisance, not impairing function or resulting in disability. Accordingly, we agree with the Young language that pain alone in not compensable. However, common sense, logic, and medical opinion dictate that pain can, at times, impair function and result in disability. Accordingly, we again agree with the Young language that pain which is an "inhibiting factor causing loss of use" is compensable. Such was the case inPowell, and such is the case here.
By opining that Tucker's pain resulted in a ten per cent disability, Dr. Eschenroeder implicitly recognized that her pain fell into the latter category and was not a mere nuisance. The commission was free to accept that opinion, which constitutes credible evidence to support its decision. Accordingly, we affirm.
Affirmed.