Loudoun Cnty. v. Richardson

• Decision Date: 16 April 2019
• Docket Number: Record No. 1533-18-4
• Citation: 70 Va.App. 169,826 S.E.2d 326
• Court: Virginia Court of Appeals
• Parties: LOUDOUN COUNTY v. Michael RICHARDSON

70 Va.App. 169

826 S.E.2d 326

LOUDOUN COUNTY

v.Michael RICHARDSON

Record No. 1533-18-4

Court of Appeals of Virginia, Alexandria.

APRIL 16, 2019

Justin R. Main (Siciliano, Ellis, Dyer & Boccarosse PLC, on briefs), for appellant.

James E. Swiger (The Law Office of James E. Swiger, PLLC, on brief), Centreville, for appellee.

Present: Judges Beales, O’Brien and Senior Judge Annunziata

OPINION BY JUDGE MARY GRACE O’BRIEN

Loudoun County ("employer") appeals a decision of the Workers’ Compensation Commission awarding permanent partial disability benefits to Michael Richardson ("claimant") pursuant to Code § 65.2-503, based on a 74% impairment rating for loss of use of his left leg. Claimant was injured on July 10, 2013 during his employment as a fire department battalion chief. As a result of his injury, he received a total hip replacement

on May 7, 2015.

Employer contends the Commission erred by (1) awarding benefits for claimant’s loss of leg use based on an injury to the left hip, a non-ratable body part under Code § 65.2-503 ; (2) finding that claimant’s functional impairment was the extent of loss prior to the hip replacement; (3) finding that the 74% impairment rating was credible; and (4) finding that claimant was at maximum medical improvement on the day immediately preceding the hip replacement. For the following reasons, we affirm the award.

BACKGROUND

A. Medical Evidence

Claimant injured his left hip during a work performance evaluation on July 10, 2013. After several months of physical therapy, his physician ordered an MRI and referred him to Dr. Anthony Avery, an orthopedist specializing in hip injuries

. Dr. Avery examined claimant on October 18, 2013 and treated him for hip pain. After additional physical therapy, claimant began a more rigorous "work hardening" program in January 2014 to determine if he could resume his pre-injury duties as a firefighter.

After six weeks, claimant "found it difficult to sit or stand for any prolonged period of time" and could perform only light duty work. Claimant returned to Dr. Avery who suggested arthroscopic surgery

for his hip. Employer authorized the operation, which Dr. Avery performed on July 15, 2014. During the surgery, Dr. Avery observed "a tremendous amount of labral tearing and cartilage floating around the joint."

Although claimant initially experienced some relief following the arthroscopy

, his hip "progressively started to get more painful as time went on." Despite continuing with physical therapy during the fall of 2014, claimant’s pain increased. At a post-operative appointment in October 2014, Dr. Avery observed that claimant suffered from severe pain in his hip and groin that "radiat[ed] down his left femur" and limited his range of motion. Dr. Avery noted that claimant qualified for a total hip replacement and determined that his "arthritic condition is from an injury, more so than a chronic degenerative condition." Dr. Avery performed the hip replacement on May 7, 2015. On November 4, 2016, after claimant’s recovery, Dr. Avery noted that claimant had an 11% impairment of his leg.

On January 25, 2017, Dr. Avery provided a written evaluation of claimant’s "level of impairment prior to his hip replacement surgery. " Dr. Avery concluded that claimant had reached maximum medical improvement three to four months after the July 2014 arthroscopic surgery

and "only continued to worsen." He opined that "[w]ithout the hip replacement[,] [claimant] would have continued to be incapacitated. In my opinion to a reasonable degree of medical probability ... his injury was permanent and would not improve without a total hip replacement." He also explained the following:

Evaluating his status at that point and using the [American Medical Association ("AMA") ] guidelines for impairment, I have calculated an impairment rating for him. He had a notable gait abnormality as well as significantly decreased [range of motion] with flexion, internal rotation, and adduction. Additionally, he had a strength deficit with flexion, extension, and abduction and additionally mild arthritic findings. Therefore, according to the [AMA] guidelines, I feel that he has a permanent partial impairment rating of 30% of his whole body and 74% loss of use of his leg .

(Emphasis added). Dr. Avery did not examine claimant on January 25, 2017, nor had he specifically performed an impairment assessment on claimant before the hip replacement. At his deposition, Dr. Avery testified that he based his conclusion on his memory and long history of treating claimant.

B. Procedural History

Claimant filed an action for permanent partial disability benefits based upon a 74% loss of use rating for his left leg. Employer contested the claim on multiple grounds, including that claimant’s loss of use rating should account for his improvement following the hip replacement. After a hearing, a deputy commissioner agreed with claimant that "the true measure of [his] functional loss of use is the extent of loss to his left leg prior to his surgically implanted hip replacement," citing Creative Dimensions Group, Inc. v. Hill, 16 Va. App. 439, 430 S.E.2d 718 (1993). However, the deputy commissioner found that claimant sustained a 49% loss of use to his left leg, reducing Dr. Avery’s impairment rating due to arthritic changes in the hip. Employer sought review by the full Commission, and claimant cross-appealed the reduction of his impairment rating from 74% to 49%.

The Commission unanimously affirmed the award but increased the amount based on the 74% impairment rating. It agreed with the deputy commissioner that under Creative Dimensions, functional loss of use is measured by a claimant’s impairment before the implantation of a corrective device. The Commission noted that it has consistently applied Creative Dimensions to permanent partial disability claims involving joint replacements. See, e.g., Rowe v. Dycom Indus., Inc., VWC No. 179-38-18 (VA Wrk. Comp. Apr. 24, 2002). It found that Dr. Avery’s 74% rating was "credible and reliable" and that the record did not support the deputy commissioner’s reduction. The Commission ruled that claimant had reached maximum medical improvement as of May 6, 2015, the day before his hip replacement. The Commission also rejected employer’s argument that claimant was not eligible for compensation because the injury was to his left hip, which is not a ratable body part under Code § 65.2-503.

ANALYSIS

A. Standard of Review

On appeal from a decision by the Workers’ Compensation Commission, this Court views the evidence in the light most favorable to the prevailing party below. Dunnavant v. Newman Tire Co. Inc., 51 Va. App. 252, 255, 656 S.E.2d 431 (2008). The Commission’s factual findings, if supported by credible evidence, are binding on appeal. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487 (1989). See Code § 65.2-706(A). "In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses." United Airlines, Inc. v. Sabol, 47 Va. App. 495, 501, 624 S.E.2d 692 (2006) (quoting Pruden v. Plasser Am. Corp., 45 Va. App. 566, 574-75, 612 S.E.2d 738 (2005) ). "If there is evidence or reasonable inference that can be drawn from the evidence to support the Commission’s findings, they will not be disturbed by [the] Court on appeal, even though there is evidence in the record to support contrary findings of fact." Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507 (1983).

This Court reviews questions of law de novo . Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255 (1999) (en banc ).

B. Legal Framework for Permanent Partial Disability Benefits

The Workers’ Compensation Act ("the Act") provides compensation for permanent partial loss of use of certain body parts, including loss of leg. See Code § 65.2-503(B). "[F]or the permanent partial loss or loss of use of a member, compensation may be proportionately awarded." Code § 65.2-503(D). "[A] numerical rating [of the permanent partial loss of use of the injured body part] is required so that benefits may be proportionally awarded according to the percentage loss and determined by the schedule in Code § 65.2-503(B)." Va. Nat. Gas, Inc. v. Tennessee, 50 Va. App. 270, 279, 649 S.E.2d 206 (2007) (quoting Hill v. Woodford B. Davis Gen. Contractor, 18 Va. App. 652, 654, 447 S.E.2d 237 (1994) ).

For the Commission to award benefits pursuant to Code § 65.2-503, "it must appear both that the partial incapacity is permanent and that the injury has reached maximum medical improvement." County of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813 (1977). A claimant reaches maximum medical improvement when "no reasonable expectation exists that [he] will obtain further functional improvement from medical treatment, even though the injury remains symptomatic and disabling." Gunst Corp. v. Childress, 29 Va. App. 701, 707, 514 S.E.2d 383 (1999).

The Commission’s decisions regarding maximum medical improvement and impairment are findings of fact.

Montalbano v. Richmond Ford, LLC, 57 Va. App. 235, 250, 701 S.E.2d 72 (2010). "Pursuant to statute, the [C]ommission’s factual findings are conclusive and binding on this Court when those findings are based on credible evidence." Id. (citing Code § 65.2-706 ).

C. Applicability of Code § 65.2-503

Code § 65.2-503 enumerates the body parts eligible for compensation under the Act. Although legs are listed in the statute, hips are not. See Code § 65.2-503(B)(13). Employer contends that because claimant injured his left hip , not his left leg , he is not eligible to recover benefits.

This Court has interpreted the statute to allow compensation for a work-related injury which "manifests" in a listed body part. Washington Metro. Area Transit Auth. v. Rogers, 17 Va. App. 657, 659, 440 S.E.2d 142 (1994). In Rogers, we affirmed the Commission’s...