Northern Virginia Training Center/Commonwealth of Virginia v. Cecelia Adomako ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Huff and Chafin
UNPUBLISHED
Argued at Alexandria, Virginia
NORTHERN VIRGINIA TRAINING CENTER/
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 0724-14-4 JUDGE ROSSIE D. ALSTON, JR.
DECEMBER 2, 2014
CECELIA ADOMAKO
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Scott John Fitzgerald, Senior Assistant Attorney General
(Mark R. Herring, Attorney General; Rhodes B. Ritenour, Deputy
Attorney General; Peter R. Messitt, Senior Assistant Attorney
General, on brief), for appellant.
W. David Falcon, Jr. (Chasen & Boscolo, P.C., on brief), for
appellee.
Northern Virginia Training Center (“employer”) challenges the commission’s award of
permanent partial disability benefits to Cecelia Adomako (“claimant”). Employer asserts that the
commission erred in finding that claimant met her burden of proving her claim for permanency
benefits for loss of use of her right arm, because the evidence reflects impairment only to
claimant’s right shoulder. Finding no error in the commission’s award, we affirm.
BACKGROUND1
On appeal from the commission, “we view the evidence in the light most favorable to the
party prevailing below.” Tomes v. James City Fire, 39 Va. App. 424, 429-30, 573 S.E.2d 312,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
315 (2002) (citing R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788,
788 (1990)).
So viewed, the evidence indicated that claimant suffered a compensable right shoulder
injury on March 3, 2009, for which she was awarded temporary total disability benefits and
lifetime medical benefits. In January 2012, claimant’s treating physician limited her to
light-duty work with no lifting more than twenty pounds with her right arm. Shortly thereafter,
claimant filed applications for permanent partial disability benefits for her right arm. In support
of her claim for permanent partial disability benefits, claimant testified that she continued to
have problems associated with her right shoulder, including pain, trouble sleeping, and difficulty
holding objects in her right hand.
Dr. Fredric Salter examined claimant on March 20, 2012. He identified claimant’s chief
complaints as right shoulder and arm pain, and noted within claimant’s medical records a
restriction on lifting over twenty pounds with her right arm. Dr. Salter also examined claimant’s
right shoulder, which revealed restricted range of motion, including diminished flexion,
extension, abduction, adduction, internal rotation, and external rotation. Dr. Salter also noted
that claimant experienced “pain with resisted forward elevation.” Dr. Salter diagnosed claimant
with “posttraumatic tendinosis and subacromial bursitis of the right shoulder with resulting
adhesive capsulitis.” He further opined that, absent additional treatment, claimant had reached
maximum medical improvement. Citing the AMA Guides to Permanent Partial Impairment,
Fifth Edition, Dr. Salter concluded that claimant’s diminished range of motion and loss of
strength warranted a 34% impairment. In response to an inquiry by claimant’s counsel,
Dr. Salter subsequently clarified that his impairment rating was for claimant’s right arm, not her
right shoulder.
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In the months following Dr. Salter’s examination, claimant continued treatment with her
treating physician, Dr. H. Edward Lane, III. On May 15, 2012, Dr. Lane examined claimant and
noted “no significant change in her shoulder.” Dr. Lane further concluded that claimant had
reached maximum medical improvement and opined that claimant was capable of light-duty
work, “lifting no more than 20 pounds and limiting . . . lifting through the right arm.”
Following an evidentiary hearing, the deputy commissioner entered an order awarding
claimant permanent partial disability benefits for loss of use of her right arm. Employer
requested review of that award.
On review, the commission affirmed the deputy commissioner’s award of permanent
partial disability benefits for claimant’s loss of use of her right arm. The commission concluded
that “a reasonable reading of Dr. Fredric L. Salter’s report and references to the AMA Guides
indicate[d] he intended to evaluate . . . claimant’s loss of use of her arm.” Indeed, the
commission noted that Dr. Salter identified claimant’s chief complaint as “right shoulder and
arm pain” and noted claimant’s right arm lifting restriction. Moreover, Dr. Salter “specifically
and unequivocally indicated [his] rating pertain[ed] to . . . claimant’s arm.” Thus, the
commission concluded that the tests Dr. Salter performed on claimant’s right shoulder
“reveal[ed] the loss of use to [claimant’s] upper extremity, and . . . [Dr. Salter’s] ratings [were]
for impairment to [claimant’s] [right arm] as a result of damage to the shoulder joint.” In the
absence of any contradictory medical evidence in the record, the commission affirmed the deputy
commissioner’s award of permanent partial disability benefits to claimant for the 34% loss of use
of her right arm.
Dissenting from the commission’s opinion, Commissioner Williams found that claimant
had failed to prove any loss of use of her arm as a result of her compensable injury.
Commissioner Williams specifically noted
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the lack of any injury to . . . claimant’s arm, the lack of any symptoms
related to her arm, the lack of any testimony by . . . claimant that she has
lost any function in her arm, the lack of any medical diagnosis relating to
her arm and the lack of any examination or measurement of . . . claimant’s
arm function by Dr. Salter.
Although mindful that Dr. Salter indicated his 34% rating was to claimant’s right arm,
Commissioner Williams reasoned that Dr. Salter’s statement was unpersuasive given his failure
to explain how he reached his rating from evidence of loss of shoulder function only. In the
absence of any such evidence, Commissioner Williams concluded that claimant had made no
showing of a loss of function to her arm as a result of the compensable injury.
This appeal followed.
ANALYSIS
Employer challenges the commission’s award of permanent partial disability benefits to
claimant. According to employer, Dr. Salter’s opinion that claimant suffered right arm
impairment is unsupported by the facts in evidence because Dr. Salter “based [his rating] entirely
on impairments to [claimant’s] shoulder, specifically shoulder movement limitations.”
Accordingly, employer alleges that the commission erred as a matter of law by accepting
Dr. Salter’s opinion and finding that claimant satisfied her burden of proving her claim for
permanent partial disability benefits.
“Code [§ 65.2-503] establishes presumptive ratings for the loss of particular body
members and also provides that ‘for the permanent partial . . . loss of use of a member
compensation may be proportionately awarded.’” Cafaro Constr. Co. v Strother, 15 Va. App.
656, 661, 426 S.E.2d 489, 492 (1993) (quoting Code § 65.2-503). “Code § 65.2-503(B)
‘provides a schedule of benefits for the loss of specific body parts,’” including the loss of use of
an arm. Va. Natural Gas, Inc. v. Clinton Tennessee, 50 Va. App. 270, 279, 649 S.E.2d 206, 211
(2007) (quoting Stanfield v. City of Hampton Fire & Rescue, 31 Va. App. 240, 241, 522 S.E.2d
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404, 405 (1999)). The shoulder is not a scheduled body part under Code § 65.2-503. However,
this Court has “read the statute to allow compensation for any work-related injury which
manifests itself in a scheduled member.” Washington Metropolitan Area Transit Authority v.
Rogers, 17 Va. App. 657, 659, 440 S.E.2d 142, 144 (1994) (citations omitted) (affirming the
commission’s award of permanent partial disability benefits for the claimant’s loss of use of his
leg (a scheduled body part) that resulted from the claimant’s work-related injury to his back (a
non-scheduled body part)).
In determining permanent partial disability benefits, this Court has held that “the
commission must rate ‘the percentage of incapacity suffered by the employee’ based on the
evidence presented [to it].” Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991) (quoting County of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d
813, 815 (1977)). In other words, to prevail on a claim for permanent partial disability benefits,
a claimant must present evidence to the commission that she has reached maximum medical
improvement and has a ratable impairment to a scheduled member. Cafaro Constr. Co., 15
Va. App. at 661, 426 S.E.2d at 492. Here, the only medical opinion concerning claimant’s
functional impairment was provided by Dr. Salter, who stated that claimant suffered functional
impairment to her right arm. See Hungerford, 11 Va. App. at 677-78, 401 S.E.2d at 215 (stating
that “a medical rating of [an] employee’s disability is evidence” of an employee’s functional
loss).
The commission considered Dr. Salter’s report and concluded that “[t]he tests [Dr. Salter]
performed on [claimant’s] shoulder reveal[ed] the loss of use to [claimant’s right arm].” That
decision is not without support in the record. See Celanese Fibers Co. v. Johnson, 229 Va. 117,
121, 326 S.E.2d 687, 690 (1985) (stating that “‘it is our duty to determine whether credible
evidence supports the [c]ommission’s finding . . . and, if such evidence exists, to sustain the
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finding.’” (quoting Cook v. City of Waynesboro, 225 Va. 23, 31, 300 S.E.2d 746, 750 (1983))).
Indeed, Dr. Salter explicitly stated that the 34% impairment rating applied to claimant’s right
arm. In reaching that decision, Dr. Salter performed objective tests that evinced impairment to
claimant’s right upper extremity and reviewed claimant’s medical records, which included lifting
restrictions placed on claimant’s right arm. See Great N. Nekoosa Corp. v. Wood, 37 Va. App.
54, 63-64, 553 S.E.2d 555, 559 (2001) (“[A]n expert’s opinion must be supported by facts within
his or her knowledge or established by other evidence.” (citation omitted)). Dr. Salter also
identified claimant’s chief complaints as “right shoulder and arm pain.” (Emphasis added).
Dr. Salter’s medical opinion is not contradicted by conflicting medical evidence in the record. In
point of fact, Dr. Salter’s opinion -- that claimant experienced impairment to the use of her right
arm as a result of her diminished range of motion and strength -- is consistent with the restriction
Dr. Lane placed on claimant’s use of her right arm.
Based on this record, we cannot say that the commission erred in crediting Dr. Salter’s
opinion that claimant suffered functional impairment to her right arm as a result of the injury to
her shoulder. Accordingly, we affirm the commission’s decision awarding claimant permanent
partial disability benefits.
Affirmed.
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