Penn National Security, etc v. Ronald J Kubesh etal

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
PENNSYLVANIA NATIONAL SECURITY
INSURANCE COMPANY
v. Record No. 1764-95-1 MEMORANDUM OPINION *
PER CURIAM
RONALD J. KUBESH, FEBRUARY 6, 1996
EASTERN METAL PRODUCTS & FABRICATORS, INC.
AND GLOBE INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Calvin W. Fowler, Jr.; Kimberly A.
Satterwhite; Williams, Mullen, Christian &
Dobbins, on briefs), for appellant.
(William C. Walker; Donna White Kearney;
Taylor & Walker, on brief), for appellees
Eastern Metal Products & Fabricators, Inc.
and Globe Indemnity Company.
No brief for appellee Ronald J. Kubesh.
Pennsylvania National Security Insurance Company (Penn
National) contends that the Workers' Compensation Commission
(commission) erred in finding that Ronald J. Kubesh (claimant)
sustained a new injury to his right ankle caused by his June 21,
1994 compensable injury by accident. Penn National contends that
claimant sustained a change in condition causally related to his
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initial compensable industrial injury of August 10, 1993. Upon
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
The deputy commissioner found that claimant sustained a new
injury by accident arising out of his employment on June 21,
1994. Penn National did not appeal this finding to the full
commission. Therefore, the full commission did not err in ruling
that this finding became the law of the case. Accordingly, this
finding is not reviewable on appeal.
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 construe 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).
"The Commission's findings of fact are binding on appeal where
supported by credible evidence." Board of Supervisors v. Martin,
3 Va. App. 139, 146, 348 S.E.2d 540, 543 (1986).
On August 10, 1993, claimant sustained a compensable injury
by accident to his right ankle and knee. Dr. Thomas Stiles,
claimant's treating orthopedic surgeon, diagnosed a tear of the
deltoid ligament at the ankle, a tear of the distal tibial fibula
syndesmosis, and a high proximal fracture of the fibula with
avulsion type injury to the deltoid ligament. Claimant underwent
open reduction and external fixation surgery. Claimant received
temporary total disability benefits from August 19, 1993 through
February 20, 1994. On February 21, 1994, claimant returned to
work, but he was not able to carry out all of his pre-injury
duties. While working, claimant had to wear a high-top shoe with
a special arch and a separate ankle brace.
By April 1994, Dr. Stiles reported that claimant was doing
fairly well, that his ankle was stable, and that the swelling was
gradually subsiding. On June 1, 1994, claimant complained to Dr.
Stiles of recurrent bouts of swelling. Claimant did not complain
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about instability.
Claimant testified that, on June 21, 1994, while in the
course of his employment, he climbed a ladder, and as he stepped
over a brace and onto staging with his left foot, he felt a sharp
pain in his right ankle. 2 On June 30, 1994, Dr. Stiles examined
claimant and diagnosed an acute sprain related to the June 21,
1994 incident. On September 6, 1994, Dr. Stiles noted that
claimant "has a definite valgus formation of his ankle when he
ambulates without his brace." Dr. Stiles opined that claimant
"definitely has increased damage to his deltoid ligament with his
last injury, and will definitely have permanent disability."
After the June 21, 1994 incident, claimant could not perform
field work. As a result, his weekly wage was reduced from $600
to $404.50.
An aggravation of a pre-existing condition must occur under
circumstances that would not amount to a new compensable injury
by accident. Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97,
100 (1977). A new injury "must, in itself, satisfy each of the
requirements for an 'injury by accident arising out of . . . the
employment.'" First Federal Savings & Loan v. Gryder, 9 Va. App.
60, 63, 383 S.E.2d 755, 757-58 (1989).
In holding Penn National liable for benefits related to
claimant's June 21, 1994 injury by accident, the commission found
2
At various times before June 21, 1994, claimant suffered
from ankle pain and swelling caused by turning or shifting his
weight.
3
as follows:
The evidence in this case shows that the
claimant reinjured and aggravated his right
ankle on June 21, 1994, but in an accident
independently compensable under the Worker's
Compensation Act. The medical records of Dr.
Stiles show that it was the second accident
with the subsequent structural and pathologic
changes in the right ankle that produced the
increased injury and the loss of wage earning
capacity.
Dr. Stiles's opinions and claimant's testimony provide
credible evidence to support the commission's finding of a new
injury, independently compensable, without regard to claimant's
prior injury of August 10, 1993. Dr. Stiles opined, without
contradiction, that claimant sustained increased damage to his
deltoid ligament as a result of the June 21, 1994 injury by
accident. Based upon this record, the commission did not err in
holding Penn National liable for benefits caused by this new
injury.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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