Opinion
Record No. 2137-92-4
March 8, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James E. Swiger; Swiger Cay, on brief), for appellant. Appellant submitting on brief.
(Susan A. Evans; Siciliano, Ellis, Dyer Boccarosse, on brief), for appellees. Appellees submitting on brief.
Present: Judges Barrow, Moon and Bray
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Robert Lewis Parnell appeals a decision of the Workers' Compensation Commission which denied him temporary total and temporary partial disability benefits during periods when he was receiving permanent partial disability benefits. Parnell contends that the commission erred when it "failed to suspend [the] permanent partial disability award" and enter an award for temporary total disability. We find no error and affirm the commission's decision.
The facts are not in dispute. On January 31, 1984, Parnell suffered an injury by accident to both legs. The injury was accepted as compensable, and temporary total disability payments were made to Parnell until July 10, 1988, when he returned to light-duty at his pre-injury wage. He was subsequently rated by his treating physician, Dr. H. Edward Lane, III, for permanent partial disability of both lower extremities. The resulting award, entered November 21, 1990, provided:
compensation for a 15% permanent loss of use of the right leg and a 34% permanent loss of use of the left leg at the weekly rate of $277.00 beginning April 10, 1990 and continuing for a combined period of 85.75 weeks.
Parnell's employment was terminated on November 16, 1990 for economic reasons, but permanent partial disability benefits continued pursuant to the November 21, 1990 award. On January 23, 1991, he filed an application for hearing based upon a change in condition, seeking reinstatement of compensation for total wage loss. Parnell subsequently amended this claim and requested suspension of the permanent partial disability benefits and reinstatement of temporary total disability benefits from November 17, 1990 through May 1, 1991 and temporary partial disability benefits from May 2, 1991 through January 19, 1992. The parties stipulated at the hearing that Parnell was entitled to temporary total disability benefits after January 20, 1992 and continuing provided he could establish that he marketed his residual work capacity.
The deputy commissioner found that Parnell sufficiently established that he marketed his residual capacity and awarded him temporary total disability benefits commencing January 20, 1992 and continuing. This holding was not challenged on review before the full commission and is not before us.
A hearing was conducted on April 8, 1992 on Parnell's application, and the deputy commissioner concluded that the award for permanent partial disability benefits fully encompassed Parnell's compensable injury and could not be suspended upon a reinstatement of temporary total disability benefits not attributable to a change in condition. On review, the full commission affirmed, similarly finding that the statute controlling at the time of Parnell's accident, Code § 65.1-56, assured compensation for the permanent partial disability rating in lieu of all other compensation to which Parnell might have been entitled. We agree that, under that statute, the award could have been suspended and substituted with wage loss benefits which resulted only from compensable causes not "embraced in the rated loss." Division of Motor Vehicles v. Williams, 1 Va. App. 401, 404, 339 S.E.2d 552, 554 (1986).
Effective July 1, 1987, the statute was amended to provide that wage loss compensation may be paid simultaneously with payments for permanent partial incapacity. See Code § 65.2-503(F) (2).
The record clearly discloses that Parnell's permanent disability was based entirely on the injury to both legs. The award establishes a permanent partial disability rating for both legs, compensable at $277 weekly for a total of 85.75 weeks. Parnell asserts that while receiving permanent disability for his left leg, his right leg was the disabling cause, and that while receiving permanent disability for his right leg, his left leg was the disabling cause. However, the record does not support this argument.
Because we agree that the record reflects that Parnell is seeking temporary total disability benefits based upon the same condition for which he was awarded permanency benefits, we find that the commission correctly applied the law existing at the time of the accident and properly refused to suspend the permanent partial award in favor of temporary total disability benefits.
Affirmed.