Newport News Shipbuilding v. Queen Wiggins

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
NEWPORT NEWS SHIPBUILDING
AND DRY DOCK COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1716-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 21, 2000
QUEEN E. WIGGINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Jonathan H. Walker (Mason, Cowardin & Mason,
on brief), for appellant.
(Gregory E. Camden; Montagna, Klein & Camden,
on brief), for appellee.
Newport News Shipbuilding and Dry Dock Company ("employer")
contends the Workers' Compensation Commission ("commission")
erred in awarding disability compensation benefits to Queen E.
Wiggins ("claimant"). On appeal, employer argues that the
commission erred in finding: (1) that claimant was totally
disabled as a result of an "injury by accident" to her left
knee; and (2) that employer was required to offer claimant light
duty employment within her knee restrictions. Because credible
evidence supports the commission's decision, we affirm.
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). "'A question raised by
conflicting medical opinion is a question of fact.'" WLR Foods,
Inc. v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152
(1997) (quoting Dept. of Corrections v. Powell, 2 Va. App. 712,
714, 347 S.E.2d 532, 533 (1986)). "'Decisions of the commission
as to questions of fact, if supported by credible evidence, are
conclusive and binding on this Court.'" Id. (quoting Manassas
Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824,
826 (1991)). "'The fact that there is contrary evidence in the
record is of no consequence.'" Id. (quoting Wagner Enters.,
Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).
Claimant, a welder at the shipyard for over nineteen years,
first reported complaints of pain and numbness in her hands on
May 9, 1995 and was diagnosed by the shipyard's medical clinic
as suffering from bilateral carpal tunnel syndrome. The
following week, claimant suffered a fall while performing light
duty work in the SPF shop and injured her left knee. The
parties stipulated that claimant's left knee condition
constituted an "injury by accident" and that her pre-existing
bilateral carpal tunnel syndrome was not a compensable
condition.
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The medical evidence established that on May 17, 1995, Dr.
Wayne Johnson, orthopedic surgeon, initially treated claimant's
knee injury. He diagnosed a "traumatic prepatellar bursitis"
and recommended conservative treatment. Dr. Johnson excused
claimant from work through May 21, 1995 and returned her to
light duty with restrictions of no bending, stooping, squatting
or lifting greater than 25 pounds. On May 24, 1995, Dr. Johnson
recommended additional work restrictions including no ladder
climbing and minimum stair climbing through May 31, 1995.
Claimant was discharged from further treatment of her knee and
returned to regular duty without restrictions beginning June 1,
1995.
During the same period, Dr. Thomas Stiles, orthopedic
surgeon, treated claimant's carpal tunnel syndrome and performed
two carpal tunnel release surgeries on September 27, 1995, and
January 10, 1996. In the course of treatment for her carpal
tunnel syndrome, claimant also complained of continued problems
with her left knee. Dr. Stiles ordered an MRI examination that
revealed a "[questionable] tear of the lateral meniscus" and
"patellar chondromalacia." Dr. Stiles ultimately recommended
arthroscopy surgery, which was performed on November 7, 1996.
He excused claimant from work beginning November 14, 1996
through January 9, 1997.
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On February 2, 1997, Dr. Stiles issued permanent knee
restrictions, including no lifting over 20 pounds, 1 no carrying
weight more than 100 feet, no crawling, no vertical ladders and
occasional kneeling and squatting. Claimant was also under
permanent wrist restrictions beginning August 7, 1996, which
included no vertical climbing, no crawling, no vibratory tool
use, no overhead work and occasional kneeling.
Claimant testified that her duties as a welder included
climbing ladders, crawling through holes and carrying a tool bag
and welding line that weighed approximately 100 pounds.
Claimant stated that when she was released to work with
restrictions following her left knee injury, she asked employer
for light duty work but none was available because of her hand
restrictions. John Allen, claimant's supervisor, testified that
claimant left work on September 25, 1995 for hand surgery and
never returned. He admitted that the shipyard did not
accommodate some of the hand restrictions, but it could have
accommodated her knee restrictions.
The commission found that claimant's "bilateral carpal
tunnel syndrome was preexisting and that work excuses related to
this problem have no impact on the knee injury's effect on
claimant's work ability." Because Dr. Stiles removed claimant
1
While the commission noted that claimant was precluded from
lifting more than "90 pounds," the work restriction form
indicates, and the parties agree, that claimant was restricted
from lifting more than "20 pounds."
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from work following the knee surgery and ultimately recommended
permanent work restrictions due to that injury, the commission
found that claimant was entitled to disability compensation
benefits.
II.
Employer first contends that because claimant was under
permanent hand restrictions for her non-compensable carpal
tunnel syndrome, she did not sustain a wage earning capacity
loss due to her knee injury. However, the evidence supports the
commission's conclusion that claimant was entitled to temporary
total and permanent partial disability benefits. The commission
found:
Dr. Stiles' work excuses clearly show
that the left knee has disabled the claimant
since the surgery. While she still suffers
from bilateral carpal tunnel syndrome, this
does not negate the fact that her treating
physician removed her from regular duties
due to knee problems. There is no evidence
that the claimant's knee injury resolved by
June 1, 1995. The record shows that Dr.
Stiles continued to treat the knee condition
and relate[d] it to the compensable
incident. Regardless [whether] the claimant
worked after the accident, the medical
evidence reflects that her knee continued to
bother her. There is no evidence of another
intervening accident or cause of the left
knee problems.
Because credible medical evidence supports the commission's
finding, it will be upheld on appeal.
Employer next contends that the commission erred in finding
that it had a duty to offer claimant selective employment.
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Employer argues that the commission failed to consider that
claimant left her pre-injury employment on September 25, 1995
for hand surgery and never returned. Thus, employer concludes,
the shipyard did not have a duty to offer selective employment
to claimant within her knee restrictions.
The commission rejected employer's argument, stating the
following:
The claimant sought selective duty from
the employer but was refused based on hand
restrictions. There was no evidence that
the employer offered her employment within
her knee restrictions. The employer cannot
argue that the claimant refused selective
employment without a legitimate offer of
such. She had permanent light-duty
restrictions resulting from bilateral carpal
tunnel syndrome. However, the claimant also
received separately issued limitations based
on the compensable knee condition and is
entitled to benefits accordingly.
As the commission clearly explained, claimant sought selective
duty within her knee restrictions, but was refused based upon
her hand restrictions. Because selective employment was
unavailable and credible evidence supports this finding, we
affirm.
Affirmed.
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