David's Towing & Recovery, Inc. v. Larry Newcomb ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Huff
Argued at Richmond, Virginia
DAVID’S TOWING & RECOVERY INC. AND
COMMERCE AND INDUSTRY INSURANCE COMPANY
MEMORANDUM OPINION ∗ BY
v. Record No. 1609-11-2 JUDGE WILLIAM G. PETTY
FEBRUARY 7, 2012
LARRY NEWCOMB
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
S. Vernon Priddy III (Two Rivers Law Group, P.C., on brief), for
appellants.
No brief or argument for appellee Larry Newcomb.
David’s Towing & Recovery Inc. and its insurance carrier (collectively “employer”)
appeal the Workers’ Compensation Commission’s entry of a supplemental award in favor of the
claimant, Larry Newcomb, for permanent partial disability benefits, on account of an additional
10% loss of the use of claimant’s right hand. Employer argues that (1) the commission erred in
finding that claimant carried his burden of proving he was at maximum medical improvement
and that (2) the commission erred in awarding claimant additional permanent partial disability
benefits based on the treating physician’s increase of claimant’s disability rating for his right
wrist from 10% to 20%. For the following reasons, we find no such errors in the commission’s
findings or award. Therefore, we affirm the commission’s award.
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Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I.
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite below only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal. “On appeal from a decision of the Workers’ Compensation Commission, the
evidence and all reasonable inferences that may be drawn from that evidence are viewed in the
light most favorable to the party prevailing below.” Artis v. Ottenberg’s Bakers, Inc., 45
Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) (en banc).
II.
A. Maximum Medical Improvement
First, employer contends that the commission erred in awarding additional benefits
because claimant failed to prove that at the time of the supplemental award, he had reached
maximum medical improvement. “The claimant has the burden of proving maximum medical
improvement.” Montalbano v. Richmond Ford, LLC, 57 Va. App. 235, 250, 701 S.E.2d 72, 79
(2010). “Permanent partial disability benefits are ‘not awardable until the injury has reached a
state of permanency, i.e. maximum improvement, when the degree of loss may be medically
ascertained.’” Id. (quoting Brown v. United Airlines, Inc., 34 Va. App. 273, 277, 540 S.E.2d
521, 523 (2001)). “‘[A]n employee has reached maximum medical improvement if no
reasonable expectation exists that the employee will obtain further functional improvement from
medical treatment, even though the injury remains symptomatic and disabling.’” Id. (alteration
in original) (quoting Gunst Corp. v. Childress, 29 Va. App. 701, 707, 514 S.E.2d 383, 386
(1999)). “The commission’s determination whether maximum medical improvement has been
reached is a factual finding. Pursuant to statute, the commission’s factual findings are conclusive
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and binding on this Court when those findings are based on credible evidence.” Id. (citation
omitted). Questions of law, however, we review de novo. Rusty’s Welding Serv., Inc. v.
Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc).
On March 4, 2010, the commission approved the parties’ award agreement and entered
an award in favor of claimant, based on an injury that occurred on June 22, 2009. This award
provided claimant with medical benefits and temporary total disability benefits. Subsequently,
based on a November 2009 medical report from the claimant’s treating physician, the
commission approved a second award agreement on April 30, 2010, entering an award providing
claimant with permanent partial disability benefits for a 10% impairment of claimant’s right
hand. While claimant’s treating physician did not specify that claimant had reached maximum
medical improvement in his November 2009 report, the deputy commissioner in the instant
proceedings below noted that “it is obvious the insurer considered the claimant to be at
[maximum medical improvement] in accepting the doctor’s rating [of 10% disability in
claimant’s right wrist] at that time.”
In his June 2010 report, which was the basis for the supplemental award before us in this
appeal, the treating physician stated that, due to arthritis, claimant’s disability rating had
increased to 20% impairment. Again, the physician did not specifically state that claimant had
reached maximum medical improvement. Ultimately, the full commission reasoned that “[the
treating physician’s] uncontradicted opinion that the claimant’s condition is deteriorating,
coupled with the agreement of the parties to a permanent partial disability award in November of
2009, sufficiently establishes that the claimant had achieved [maximum medical improvement]
status.”
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The evidence here supports the commission’s finding that claimant carried his burden to
prove he had reached maximum medical improvement. The parties agreed to the initial award of
permanent partial disability benefits based on the original 10% disability rating. By agreeing to
this award, employer was acknowledging that claimant had reached maximum medical
improvement at that time. Although employer maintains that claimant’s condition subsequently
improved between his first and second examinations by his treating physician, the evidence
supports the commission’s finding that claimant’s condition actually deteriorated during this
time. The commission accepted the opinion of claimant’s treating physician that although
claimant’s range of motion had improved between examinations, the worsening arthritis in
claimant’s wrist sufficiently outweighed the increased mobility to warrant a 10% increase in
claimant’s overall disability rating.
Because claimant’s achievement of maximum medical improvement had already been
established, and because the commission found that overall, claimant’s wrist had gotten worse,
not better, between examinations, there was no reason to require claimant to re-establish that he
had reached maximum medical improvement to support his supplemental award. Indeed,
employer has pointed us to no legal authority imposing such a requirement. 1 By definition,
someone who is deteriorating is not improving. Accordingly, we hold that the commission did
not err in declining to require new affirmative proof that claimant had reached maximum medical
improvement at the time of his supplemental award.
1
The argument section in employer’s brief on this first assignment of error contains no
citations to any legal authority besides citations regarding the standard of review and burden of
proof.
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B. Increase in Disability Rating
Second, employer contends that the commission erred in giving claimant a supplemental
award based on the treating physician’s opinion. Employer argues that the treating physician
failed to express his opinion “to the required more-probably-than-not standard.” We disagree.
As is well settled, “‘we do not judge the credibility of witnesses or weigh the evidence on
appeal.’” Artis, 45 Va. App. at 83, 608 S.E.2d at 517 (quoting Celanese Fibers Co. v. Johnson,
229 Va. 117, 121, 326 S.E.2d 687, 690 (1985)). “Rather, we are bound by the commission’s
findings of fact as long as ‘there was credible evidence presented such that a reasonable mind
could conclude that the fact in issue was proved,’ even if there is evidence in the record that
would support a contrary finding.” Id. at 83-84, 608 S.E.2d at 517 (emphasis in original)
(quoting Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415
(1988)). Furthermore,
“[a] medical opinion based on a ‘possibility’ is irrelevant, purely
speculative and, hence, inadmissible. In order for such testimony
to become relevant, it must be brought out of the realm of
speculation and into the realm of reasonable probability; the law in
this area deals in ‘probabilities’ and not ‘possibilities.’”
State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206, 208-09, 491 S.E.2d 286, 287 (1997)
(quoting Fairfax Hosp. Sys., Inc. v. Curtis, 249 Va. 531, 535, 457 S.E.2d 66, 69 (1995)
(additional citation omitted)).
We conclude that the treating physician here expressed his opinion as a probability, not
as a mere possibility. Thus, the commission did not err in finding this opinion credible and in
basing its supplemental award to claimant upon the physician’s opinion.
The treating physician examined claimant in June 2010 and reported that his
interpretation of three X-rays showed that “the intra-articular portion of [claimant’s] fracture has
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caused some increased post-traumatic arthritis in the mid-portion of his wrist joint.” The
physician diagnosed claimant with a developing “post-traumatic arthritis.” The report also stated
that
[claimant] was told . . . that because of the x-ray we took here, we
could definitely increase his degree of permanency in [his right]
wrist to 20% rather than the 10% we gave him before. I would
estimate his arm at a 20% loss as a result of the post-traumatic
arthritis of the right wrist.
The commission found this opinion credible, noting that the treating physician “was
obviously aware” that the range of motion in claimant’s right wrist had improved. The
commission reasoned that “[d]espite such improvement, [the treating physician] was
nevertheless of the opinion that, at least in part as a result of worsening arthritis, a 10[%]
increase in the claimant’s permanent impairment was warranted.” Although employer argues
that the use of the terms “could definitely increase” and “estimate” indicate a lack of the requisite
probability in the physician’s opinion, this language as used in this context does not negate
probability. All permanent partial disability ratings are medical estimates, and the fact that the
physician said that “we could definitely increase [claimant’s] degree of permanency” does not
imply a mere possibility as opposed to a probability of claimant’s increased disability. Viewing
the evidence and its reasonable inferences in the light most favorable to claimant, the prevailing
party below, see Artis, 45 Va. App. at 83, 608 S.E.2d at 517, we conclude that the commission
was free to interpret the physician’s language as expressing his medical opinion as a probability,
and not as a mere possibility. Therefore, we hold that the commission did not err in finding the
treating physician’s report sufficient to prove that it was more probable than not that claimant’s
disability in his right wrist had increased from 10% to 20%. Accordingly, the commission did
not err in basing its supplemental award to claimant on the treating physician’s opinion.
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III.
For the foregoing reasons, we affirm the commission’s supplemental award to claimant.
Affirmed.
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