Jim Henry Stanley v. Tultex Corporation ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Senior Judge Overton
JIM HENRY STANLEY
MEMORANDUM OPINION *
v. Record No. 2373-98-3 PER CURIAM
APRIL 20, 1999
TULTEX CORPORATION
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Robert A. Williams; Williams, Luck &
Williams, on brief), for appellant.
(James A. L. Daniel; Martha White Medley;
Daniel, Vaughan, Medley & Smitherman, on
brief), for appellee.
Jim Henry Stanley (“claimant”) contends that the Workers’
Compensation Commission (“commission”) erred in finding that he
failed to prove entitlement to compensation for a permanent
partial disability to his left leg. Upon reviewing the record and
the briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission’s
decision. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Unless
we can say as a matter of law that claimant’s evidence sustained
his burden of proof, the commission’s findings are binding and
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
conclusive upon us. See Tomko v. Michael’s Plastering. Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On January 18, 1994, claimant sustained a compensable injury
by accident resulting in a back injury. Claimant underwent back
surgery in May 1994. Before January 18, 1994, claimant had
undergone back surgery in January 1991, October 1991, and
September 1993. On February 24, 1997, claimant filed a claim for
permanent partial disability (“PPD”) benefits.
In a December 15, 1997 letter, claimant’s treating physician,
Dr. David L. Kelly, Jr., stated “I have previously rated Mr.
Stanley as having a 40 percent permanent partial disability of his
spine, relative to multiple operations he has had in the past
. . . .” In a January 26, 1998 letter, Dr. Kelly wrote, “As a
result of multiple operations on Mr. Stanley’s back, he has a 40
percent permanent partial disability rating in his left leg.”
Based upon this evidence, the commission denied claimant’s
application, relying upon four reasons set forth by the deputy
commissioner as follows:
First, that Dr. Kelly’s ratings were not
contemporaneous to any physical examination
of the claimant. Second that the rating was
based on the claimant’s multiple surgeries,
some of which pre-existed the claimant’s
January 1994 work injury. Third, that the
claimant had not clearly reached maximum
medical improvement. Fourth, that Dr. Kelly
had simply transferred his earlier rating of
this opinion is not designated for publication.
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the claimant’s spine to the leg, without any
foundation.
No evidence proved that Dr. Kelly’s ratings were given
contemporaneous to any examination. In addition, Dr. Kelly’s
reports clearly reflect that the rating is the result of
claimant’s multiple back surgeries. Thus, claimant failed to
prove what portion of his permanent partial disability was
caused by the January 1994 work injury. In addition, in
response to employer’s written questions dated February 20,
1998, Dr. Kelly agreed that “[t]he wording change in [his]
ratings outlined in [his] letters of December 15, 1997 and
January 26, 1998 . . . were changes made at the request of Mr.
Stanley’s attorney to assist him in pursuing his claim for
workers’ compensation benefits.” Finally, no evidence proved
that claimant had reached maximum medical improvement. In fact,
on February 27, 1995, Dr. Kelly wrote to claimant that his
symptoms would “wax and wane.”
Based upon this record, we cannot say as a matter of law
that claimant’s evidence sustained his burden of proving a
permanent partial disability to his left leg that is compensable
pursuant to Code § 65.2-503.
For these reasons, we affirm the commission’s decision.
Affirmed.
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