Larry Dean Bartley v. Carolina Steel Corp. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
LARRY DEAN BARTLEY
v. Record No. 2004-96-2 MEMORANDUM OPINION *
PER CURIAM
CAROLINA STEEL CORPORATION AND FEBRUARY 4, 1997
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert L. Flax; Flax & Stout, on brief), for
appellant.
(Gregory T. Casker; Daniel, Vaughan, Medley &
Smitherman, on brief), for appellees.
Larry Dean Bartley (claimant) contends that the Workers'
Compensation Commission (commission) erred in awarding him
permanent partial disability benefits based upon a 12.5%
impairment rating to his right knee rather than awarding him
benefits based upon the entire 25% impairment rating rendered by
Dr. Robert W. Sydnor. 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. Rule
5A:27.
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).
So viewed, the evidence showed that Dr. Sydnor, claimant's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
treating orthopedic surgeon, opined that claimant's right knee
injury caused by his November 18, 1993 compensable industrial
accident was superimposed on preexisting degenerative changes in
claimant's right knee, which were causally related to a 1979
accident. Dr. Sydnor opined that claimant suffered from a 25%
impairment of his right lower extremity. Dr. Sydnor stated that
12.5% of the 25% impairment rating was causally related to
preexisting degenerative changes in claimant's right knee due to
the 1979 injury and 12.5% of the rating was causally related to
claimant's compensable November 18, 1993 industrial injury.
Claimant's testimony, which was corroborated by two witnesses,
established that claimant suffered no loss of use of his right
leg prior to the November 18, 1993 industrial injury.
The commission awarded claimant permanent partial disability
benefits based upon the 12.5% impairment rating rendered by Dr.
Sydnor, giving employer credit for the 12.5% impairment causally
related to preexisting degenerative changes due to the 1979
accident. Claimant contends that the commission erred in not
awarding him permanent partial disability benefits based upon the
entire 25% impairment rating.
Dr. Sydnor's opinions provide ample support for the
commission's finding. Dr. Sydnor opined that only half of
claimant's permanent disability to his right lower extremity was
causally related to his compensable November 18, 1993 industrial
injury. An employer is not liable for that portion of a
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compensable injury that preexisted the employer/employee
relationship. See Virginia Fibre Corp. v. Moore, 17 Va. App.
691, 693, 440 S.E.2d 432, 434 (1994) (citing Code § 65.2-505),
aff'd, 249 Va. 1, 452 S.E.2d 360 (1995).
Based upon this record, we cannot find as a matter of law
that claimant's evidence proved he was entitled to an award of
permanent partial disability benefits based upon a 25% impairment
rating. Accordingly, the commission did not err in awarding
claimant permanent partial disability benefits based upon the
12.5% impairment rating to his right lower extremity.
For these reasons, we affirm the commission's decision.
Affirmed.
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