Patricia McDaniel Wise v. Bonfeld, Inc. ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
PATRICIA McDANIEL WISE
MEMORANDUM OPINION*
v. Record No. 1433-99-2 PER CURIAM
OCTOBER 19, 1999
BONFELD, INC. AND
OLD REPUBLIC INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Patricia McDaniel Wise, pro se, on brief).
(Anne M. Dobson; R. Ferrell Newman; Thompson,
Smithers, Newman, Wade & Childress, on
brief), for appellees.
Patricia McDaniel Wise contends that the Workers'
Compensation Commission erred in finding that she failed to
prove she was entitled to an award of permanent total disability
benefits. 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 the evidence sustained
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Wise's burden of proof, the commission's findings are binding
and conclusive upon us. See Tomko v. Michael's Plastering. Co.,
210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
As pertinent to this appeal, Code § 65.2-503(C)(1)
and(C)(2) provide compensation for permanent and total
incapacity when there is "[l]oss of both hands, both arms, both
feet, both legs, both eyes, or any two thereof in the same
accident . . . [or an] [i]njury for all practical purposes
resulting in total paralysis . . . ." Subsection (D) provides
that "the permanent loss of the use of a member shall be
equivalent to the loss of such member, and for the permanent
partial loss or loss of use of a member, compensation may be
proportionately awarded."
To meet her burden of proof under this section, Wise was
required to prove that she is unable to use her permanently
impaired members in gainful employment. See Virginia Oak
Flooring Co. v. Chrisley, 195 Va. 850, 857, 80 S.E.2d 537, 541
(1954). In addition, she was required to "establish that [she]
has reached maximum medical improvement and . . . [her]
functional loss of capacity [must] be quantified or rated."
Cafaro Constr. Co. v. Strother, 15 Va. App. 656, 661, 426 S.E.2d
489, 492 (1993).
In denying Wise's application, the commission found as
follows:
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[C]laimant continues to experience pain in
the left shoulder, left side, neck and upper
back, none of which are scheduled members
under the relevant Code Section. On Review,
the claimant asserts that the permanency
rating assigned by Dr. [Lee] Voulters in
June 1991 is sufficient to carry her burden.
We do not agree. It is clear that Dr.
Voulters concluded that the claimant has
reached maximum medical improvement and
suffers from a 10% permanent partial
disability. However, we cannot determine
whether this is a whole body impairment
rating, a rating to a specific scheduled
member, or the criteria he utilized in
rendering this opinion. Further, we cannot
determine whether this rating is assigned to
one member as opposed to two or more. We
also note the Attending Physician's Report
completed by Dr. Voulters in February 1991
in which he assigned a 20% permanency
rating. This report is unsupported by any
medical reports and suffers from the same
defects as the report of June 1991.
With the exception of Dr. Voulters,
only Dr. [Jonathan R.] Amy rendered an
opinion on the issue of permanency. He
reported an essentially normal examination
as to the functionality of the upper and
lower extremities based on objective
criteria. Dr. Amy noted complaints of pain
while performing certain tasks which appear
to affect only one extremity. More
importantly, he could not state with a
reasonable degree of medical certainty what
percentage of permanent disability the
claimant suffers from based on the AMA
Guidelines. Neither he nor any other
physician rendered an opinion on the
percentage of permanent disability to any
scheduled member, singly or in tandem.
The commission's findings are amply supported by the
record. Because Wise failed to present evidence of a specific
rating of the functional loss of use of two scheduled members as
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required for an award under Code § 65.2-503(C), we cannot find
as a matter of law that the evidence was sufficient to sustain
her burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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