Com., Dept. of Corrections v. Powell, 1380-85
| Citation | 347 S.E.2d 532,2 Va.App. 712 |
| Decision Date | 19 August 1986 |
| Docket Number | No. 1380-85,1380-85 |
| Parties | COMMONWEALTH of Virginia DEPARTMENT OF CORRECTIONS v. Thomas Wayne POWELL. Record |
| Court | Court of Appeals of Virginia |
Eric K.G. Fiske, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellant.
Charles H. Warren (Harris & Matthews, P.C., South Hill, on brief), for appellee.
Present: BAKER, DUFF and COLE, JJ.
The Department of Corrections (employer) appeals from a decision of the Industrial Commission awarding Thomas Wayne Powell (claimant) fifty percent permanent partial disability, pursuant to Code § 65.1-56, for the loss of use of his arm. The employer challenges the Commission's finding that Powell's injury had reached maximum medical improvement and the method used for rating the disability to the arm. We find no merit in either contention and affirm the Commission's award.
On May 25, 1982, an inmate stabbed Powell in the left side of his neck and shoulder during the course of his employment as a correctional officer. His claim was accepted as compensable, and temporary total disability benefits were paid from the date of his injury until he returned to work on June 6, 1983. On April 11, 1985, Powell filed an application seeking compensation for permanent partial loss of use of the left arm as a result of the May 25, 1982, accident. After a hearing, the deputy commissioner found that the claimant had reached maximum medical improvement and awarded him benefits for fifty percent permanent disability to his left arm. The award was affirmed by a majority of the full Commission. This appeal followed.
The employer first contends that the evidence does not support the finding that Powell had reached maximum medical improvement. At the evidentiary hearing, Dr. John J. Brush, a board certified neurologist, testified that he had treated Powell since October 1982, that Powell's stab wounds had caused nerve damage to his left shoulder, and that his injury had reached maximum medical improvement. Dr. Brush expressly stated: "He is not going to get any better in other words." The employer sought independent evaluations of the claimant's condition from Dr. Allan H. Friedman and Dr. George Johnson. Dr. Johnson found no permanent disability. However, in a February 26, 1985, medical report, Dr. Friedman, a neurosurgeon, stated that the claimant had reached maximum medical improvement and gave him a twenty percent disability rating.
Although there was other medical evidence contrary to the opinions of Dr. Brush and Dr. Friedman, it is fundamental that a finding of fact made by the Commission is conclusive and binding upon this court on review. A question raised by conflicting medical opinion is a question of fact. Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985); Pocahontas Fuel Co. v. Agee, 201 Va. 678, 680, 112 S.E.2d 835, 837 (1960); Estep v. Blackwood Fuel Co., 185 Va. 695, 699, 40 S.E.2d 181, 183 (1946). We find no error in the Commission's decision that Powell had reached maximum medical improvement because there was credible medical evidence to support the finding.
Next, the employer contends that in awarding a permanent disability rating of fifty percent of the left arm, the Commission applied an improper legal standard. The employer's argument is two-pronged. First, it says that Code § 65.1-56 requires a rating based upon an anatomical loss of use. Second, the employer argues that Dr. Brush focused solely on the disability present in Powell's arm when he used it vigorously or under stress. The employer argues that the rating should have considered Powell's ability to use his arm in any type of employment, not just his ability to use the arm under stressful or vigorous conditions. In making this argument, it relies on the following statement by the court in Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 80 S.E.2d 537 (1954):
The phrases "total and permanent loss" or "loss of use" of a leg do not mean that the leg is immovable or that it cannot be...
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...upon medical evidence. "A question raised by conflicting medical opinion is a question of fact." Department 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 b......
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