Hyters Coal Co, Inc v. Oral R Bragg ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
HYTERS COAL CO., INC. AND
OLD REPUBLIC INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 0763-02-3 PER CURIAM
AUGUST 27, 2002
ORAL R. BRAGG
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. T. Mullins; Street Law Firm, L.L.P., on
brief), for appellants.
(Clarence E. Phillips; Clarence E. Phillips,
P.C., on brief), for appellee.
Hyters Coal Co., Inc. and its insurer (hereinafter referred
to as "employer") contend the Workers' Compensation Commission
erred in finding that (1) Oral R. Bragg's (claimant) claim for
permanent total disability ("PTD") benefits related to his right
foot condition was not barred by the two-year statute of
limitations contained in Code § 65.2-601; (2) claimant's right
foot condition was causally related to his compensable February
6, 1991 left foot injury; and (3) claimant proved he was unable
to use his legs to any substantial degree in gainful employment,
entitling him to an award of PTD benefits. Upon reviewing the
record and the parties' briefs, we conclude that this appeal is
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
I. Statute of Limitations
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In ruling that claimant's claim for PTD benefits related to
his right foot was not barred by the two-year statute of
limitations contained in Code § 65.2-601, the commission found
as follows:
We do not agree with the deputy
commissioner that Dr. [Calvin] Johnson's
March 28, 2001 report established that the
claimant injured his right foot in February
1991. The better history taken by Johnson
was in November 2000, when he examined the
claimant. In those notes, Dr. Johnson did
not record a right-foot injury. Moreover,
[Dr. Johnson] appeared to be troubled with
opining that the 1991 accident injured
[claimant's] right foot because there was no
mention of right foot problems at the time
of the accident. When [Dr. Johnson]
reexamined his own notes and completed the
March 28, 2001, report, he erroneously
concluded that the claimant injured his
right foot in the accident.
The claimant has never claimed that he
injured his right foot in the 1991 accident.
Rather, his Claim was that, as a result of
the left-leg injury, he has developed
right-foot problems. The medical evidence
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is replete with physicians' histories of the
1991 accident, and no history, including
Dr. Johnson's November 2000 history, records
a right foot injury. Only in Dr. Johnson's
interpretation of his history does he report
a right-foot injury in 1991. We believe
this was mistaken, and find that the
evidence cannot reasonably be interpreted to
show a right-foot injury in 1991.
The deputy commissioner denied the
claim because the claimant failed to file a
claim for his right foot injury within two
years of February 6, 1991. The employer did
not argue that "a compensable consequence
would be barred by the statute [of
limitations]," but argued that the claimant
had a "new injury" to his right ankle that
was barred by the statute of limitations.
As set forth above, we do not believe that
the claimant injured his right foot in the
February 1991 accident. Moreover, there was
no evidence of any other "new and separate
injury" to the claimant's right foot. Thus,
we believe that the claimant's Claim was
based on his right-foot problems being a
compensable consequence of the left-leg
injury, and not based on "new and separate
injury." Accordingly, the Claim was not
barred by Code § 65.2-601 but timely under
Code § 65.2-708.
(Citation omitted.)
In light of the lack of any history of claimant injuring
his right foot in the 1991 accident, the commission, as fact
finder, was entitled to weigh Dr. Johnson's medical reports, and
to conclude that in his March 28, 2001 report, he erroneously
concluded that the claimant injured his right foot in the
accident. Claimant's testimony and the numerous physicians'
histories of the 1991 accident that did not include a right foot
injury, provided credible evidence from which the commission
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could reasonably infer that claimant did not sustain a right
foot injury in the 1991 accident, but rather that his claim was
based on his right foot problems being a compensable consequence
of the left leg injury. Accordingly, the commission did not err
in concluding that the claim was not barred by Code § 65.2-601,
but rather was timely under Code § 65.2-708.
II. Causation
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if there is credible
evidence to support the finding." Ingersoll-Rand Co. v. Musick,
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).
In ruling that claimant proved that his right foot problem
was a direct and natural result of his 1991 left leg injury, the
commission found as follows:
[T]he claimant suffered from a pre-existing
right-ankle condition. Dr. [William]
McIlwain described this condition as a
"tarsal coalition." There was no evidence,
however, of any treatment or problems with
the right ankle before the 1991 accident.
After the accident, which resulted in the
eventual loss of the claimant's left leg,
the claimant developed right-leg problems.
He was told in 1992 by Dr. [Judson] McGowan
that he had arthritis. In 1997, Dr. [N.C.]
Ratliffe told him that he had "weakness" in
the right ankle.
Dr. Ratliffe opined on October 27,
2000, that the claimant's right-ankle
condition was "caused by his using the right
ankle more, to compensate for the loss of
his left leg." Similarly, Dr. McIlwain
stated that the claimant's right-ankle
problem "is aggravated by his having to
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shift to the right foot because of pain on
the left. Dr. Johnson's opinion as to
causation is not very helpful because he was
under the mistaken belief that the claimant
injured his right ankle in the February 1991
accident.
. . . The claimant testified about his
difficulty using his prosthesis and gait
restrictions caused by his left leg. On
several occasions, the claimant's treating
physicians noted gait problems arising from
the loss of the left leg. Most importantly,
however, the medical evidence, consisting of
Dr. Ratliffe's and Dr. McIlwain's opinions,
was uncontradicted that the claimant's right
ankle problems were the result of the
left-leg amputation. Although Dr. McIlwain
believed that the claimant was essentially
predisposed to right-ankle problems because
of his tarsal coalition, he also stated that
the left-leg amputation "aggravated" his
right ankle condition.
Claimant's testimony, coupled with the opinions of
Drs. Ratliffe and McIlwain, provide ample credible evidence to
support the commission's findings. As fact finder, the
commission was entitled to weigh the medical evidence, to accept
the opinions of Drs. Ratliffe and McIlwain, and to reject
Dr. Johnson's opinion. "Questions raised by conflicting medical
opinions must be decided by the commission." Penley v. Island
Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
Because credible evidence supports the commission's finding
that claimant proved a direct causal connection between the 1991
accident and his right ankle problems, we will not disturb that
finding on appeal.
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III. PTD Benefits
As the Supreme Court reiterated in
Georgia-Pacific Corp. v. Dancy, 255 Va. 248,
497 S.E.2d 133 (1998), "'[t]he phrases
"total and permanent loss" or "loss of use"
of a leg do not mean that the leg is
immovable or that it cannot be used in
walking around the house, or even around the
block. They do mean that the injured
employee is unable to use it in any
substantial degree in any gainful
employment.'"
Gunst Corp. v. Childress, 29 Va. App. 701, 708-09, 514 S.E.2d
383, 387 (1999) (citations omitted).
In awarding claimant PTD benefits pursuant to Code
§ 65.2-503(C)(1), and in ruling that he proved he was unable to
use his legs to any substantial degree in gainful employment,
the commission found as follows:
Dr. Ratliffe opined that the claimant would
"never be able to return to work for his
left stump." Dr. Johnson believed that the
claimant was unable to "do activities where
he is required to stand, walk, or climb for
prolonged period of time, nor can he use the
extremities to manipulate levers or foot
pedals." He also stated that he could not
work on uneven ground or "do stair climbing
or ladder climbing." Dr. McIlwain opined
that "were it not for that pre-existing
tarsal condition and arthritis, he could use
the right lower extremity to a substantial
degree in gainful employment despite the
amputation on the opposite side." Thus,
Dr. McIlwain's opinion essentially was that
the claimant was unable to engage to a
substantial degree in gainful employment.
The claimant testified that he had an
eighth-grade education, having dropped out
of school after two weeks in the ninth grade
because of the death of both of his parents
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at that time. He has not worked since the
accident and has not received any additional
schooling or training. He worked as an
equipment operator at the time of the
accident. As early as January 1992,
Dr. [Lowell] Gill, the first specialist to
recommend amputation, advised the claimant
to "retire from his present form of work to
try to be re-educated through vocational
rehab or some other agency for consideration
of a more sedentary type of employment."
The claimant, however, has not had any
additional schooling or retraining and faces
a vocational future with limited education,
complete loss of one leg and a 25% loss of
use of the other, and severe restrictions on
his physical activities.
. . . Admittedly, there was evidence
that the claimant had some residual use of
his legs. On balance, however, we find that
the evidence established that, more likely
than not, the combination of the claimant's
right and left leg injuries, together with
his inability to work, have rendered him
permanently and totally disabled.
The commission's factual findings are amply supported by
credible evidence, including claimant's testimony and the
medical records and opinions of Drs. Ratliffe, McIlwain, and
Gill. That credible evidence supported the commission's
conclusion that "the combination of the claimant's right and
left leg injuries, together with his inability to work, have
rendered him permanently and totally disabled."
"We do not retry the facts before the
Commission nor do we review the weight,
preponderance of the evidence, or the
credibility of the witnesses. If there is
evidence or reasonable inference that can be
drawn from the evidence to support the
Commission's findings, they will not be
disturbed by this Court on appeal, even
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though there is evidence in the record to
support contrary findings of fact."
Id. at 709, 514 S.E.2d at 387 (citation omitted).
For these reasons, we affirm the commission's decision.
Affirmed.
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