York Co. Public Schools v. Dollie Marshall ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
YORK COUNTY PUBLIC SCHOOLS and
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION * BY
v. Record No. 0384-97-1 JUDGE NELSON T. OVERTON
SEPTEMBER 23, 1997
DOLLIE M. MARSHALL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Cecil H. Creasey, Jr. (Sands, Anderson,
Marks & Miller, on brief), for appellants.
Hugh B. McCormick, III (Patten, Wornom &
Watkins, L.C., on brief), for appellee.
York County Public Schools (employer) appeals from a
decision of the Workers' Compensation Commission awarding Dollie
Marshall medical and permanent partial disability benefits for a
work-related knee injury. Finding credible evidence in the
record to support the commission's decision, we affirm.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, we recite only those facts necessary to the
disposition of this appeal.
On April 28, 1994, Mrs. Dollie Marshall twisted her leg in a
standing pool of water while at work. This twisting tore the
medial and lateral meniscus of her knee. Mrs. Marshall also
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
suffered from a torn anterior cruciate ligament (ACL), but this
injury pre-existed the accident. Both parties have stipulated
that Mrs. Marshall has suffered a compensable injury to her knee,
and the only issues on appeal concern treatment of the torn ACL
relative to the injuries suffered during the accident.
Dr. Treishmann, Mrs. Marshall's orthopedic surgeon,
testified that the meniscus tears destabilized her knee. While
he had already performed surgery to correct these tears, a
further operation is necessary to repair the torn ACL in order to
prevent future deterioration of the knee. He testified that the
destabilization would not have occurred but for the accident and
resulting torn meniscus. Accordingly, the commission awarded
Mrs. Marshall future medical benefits and 25% permanent partial
disability; the amount directly attributable to the meniscus tear
and not the ACL tear.
Guided by well-established principles, we construe the
evidence in the light most favorable to the party prevailing
below. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.
App. 503, 504, 339 S.E.2d 916, 916 (1986). The commission's
findings of fact will not be disturbed on review if there is
credible evidence to support them. See Marketing Profiles, Inc.
v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993); Ogden
Allied Aviation v. Shuck, 17 Va. App. 53, 55, 434 S.E.2d 921, 922
(1993). In cases involving pre-existing injuries, the law is
clear: "If the accident accelerates or aggravates a pre-existing
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diseased condition, the injured party is entitled to
compensation." Liberty Mutual Ins. Co. v. Money, 174 Va. 50,
55-56, 4 S.E.2d 739, 741 (1939); Ohio Valley Constr. Co. v.
Jackson, 230 Va. 56, 334 S.E.2d 554 (1985). The fact that the
accident alone would not have caused the injury without the
pre-existing injury is immaterial. Money, 174 Va. at 55, 4
S.E.2d at 741.
Employer first asserts that the ACL tear, and impairment of
the knee flowing therefrom, is not causally related to the
work-related injury and is, thus, not compensable. However, Dr.
Treishmann testified that the ACL tear alone did not
substantially affect Mrs. Marshall's knee, but that it was the
combination of the two injuries which severely impaired her use
of the limb. Because that determination is supported by credible
evidence, it is binding and conclusive on appeal. See Greif
Cos./ Genesco, Inc. v. Hensley, 22 Va. App. 546, 552, 471 S.E.2d
803, 806 (1996).
Employer next asserts that the permanent partial disability
award was improper because Mrs. Marshall had not proven the
extent of the impairment. He reasons that because Dr. Treishmann
has recommended further surgery to correct the torn ACL, Mrs.
Marshall cannot have reached her maximum medical recovery until
after the surgery. Yet the record indicates that the recommended
surgery will not effect an improvement to her condition. It will
merely cause a "slowing down or prevention of further
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deterioration." Consequently, Dr. Treishmann was free to
conclude, and the commission was free to believe, that Mrs.
Marshall had reached maximum medical recovery.
Employer finally contends that Dr. Treishmann is only
guessing at the level of impairment to her knee, so no award
should be made. Dr. Treishmann, like any physician, makes
estimates regarding all aspects of patient condition and
treatment. He bases these estimates on his education, many years
of experience as an orthopedic surgeon, and his first-hand
examination of Mrs. Marshall. When the commision made its
finding it considered Dr. Treishmann's estimate, the records upon
which he based his estimate and, most importantly, the fact that
appellants presented no evidence contrary to Dr. Treishmann's
estimate. Since there was credible evidence in support of the
commission's resolution of this issue, we find no merit in
employer's argument that the award was contrary to law and the
evidence. See Boblett v. Commonwealth, 10 Va. App. 640, 652, 396
S.E.2d 131, 137 (1990).
Accordingly, the decision of the commission is affirmed.
Affirmed.
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