Spotsylvania County v. Hart, 761180

• Decision Date: 23 November 1977
• Docket Number: No. 761180,761180
• Citation: 218 Va. 565,238 S.E.2d 813
• Court: Virginia Supreme Court
• Parties: COUNTY OF SPOTSYLVANIA et al. v. Mrs. William L. HART. Record

Page 813

238 S.E.2d 813

218 Va. 565

COUNTY OF SPOTSYLVANIA et al. v. Mrs. William L. HART.

Record No. 761180.

Supreme Court of Virginia.

Nov. 23, 1977.

Frank B. Miller, III, Richmond (Mary Louise Kramer, Sands, Anderson & Marks, Richmond, on brief), for appellants.

Carroll E. Smith, Fredericksburg, for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

CARRICO, Justice.

This case involves the application of Code §§ 65.1-56 ¹ and -64, ² parts of the Workmen's Compensation Act. Under § 65.1-56, an employee is entitled to compensation for fixed periods for the total or partial loss or loss of use of specified members of his body. Under § 65.1-64, when an employee receives or is "entitled to compensation" for an injury covered by § 65.1-56 and he dies from unrelated causes, "the unpaid balance of compensation" is payable to his statutory distributees dependent upon him for support. The present case invokes the survival provisions of § 65.1-64, and the issue is whether, at the time of his death from an unrelated cause, the employee was "entitled to compensation" for an injury covered by § 65.1-56.

On January 14, 1973, the employee, William L. Hart, sustained a gunshot wound to his right arm in the course of his duties as a deputy sheriff of Spotsylvania County. Pursuant to an agreement with the County and the latter's insurance carrier, Hart received compensation for temporary total incapacity until January 6, 1974, when the compensation payments ceased upon his return to work at his pre-injury wage.

According to his physician, Dr. Marriott C. Johnson, Hart "made a remarkable recovery" and "regained amazing function in his right arm." He experienced, however, "some stiffness in his fingers" and "in the wrist." Doctor Johnson discussed with Hart "the possibility of another evaluation" by Dr. Frank McCue, a hand surgeon, "in regards to optimal improvement of (Hart's) hand." Hart was "hesitant about any further surgery because he (did not) want to lose what he (had) regained." Later, however, with the "upgrading" of the sheriff's department where Hart was employed, he became "very interested in what (could) be done to further improve the hand function." Doctor Johnson advised Hart that "surgery on the forearm . . . would be a strong consideration." Consequently, Johnson referred Hart to Dr. McCue, with the request that McCue determine whether surgery "was a serious consideration" and to "proceed if it was indicated."

Hart had an appointment to see Dr. McCue on November 10, 1975. On November 2, however, Hart died of a heart attack. On November 11, Dr. Johnson wrote the insurance carrier, reporting that, upon reviewing his records following Hart's death, he discovered he "had never stated a permanent impairment rating on Mr. Hart's right arm." Johnson opined that, based upon "a total evaluation" made of Hart's injury during an examination on October 30, the "impairment rating of (Hart's) right arm on his last visit would be . . . 60 per cent permanent impairment of that arm."

Invoking the survival provisions of § 65.1-64, on February 26, 1976, Hart's widow, the present appellee, applied to the Industrial Commission for a determination "whether or not the insurance company in this case is responsible for any further payment" on account of Hart's 1973 injury to his right arm. Upon a record consisting of Dr. Johnson's various medical reports, the Commission held that, at the time of his death, Hart "had a compensable 60% permanent loss of use of the right arm." The Commission held further that the claim for compensation for permanent disability survived Hart's death, thus entitling his statutory distributees dependent upon him for support to an award of $70 per week for 120 weeks. The award was entered accordingly, and the County and its insurance carrier have appealed.

The benefits provided by Code § 65.1-56 for the loss or the loss of use of a body member are payable "irrespective of continued employment, loss of wages, or like considerations." While § 65.1-56 benefits are "in lieu of all other compensation," they are payable even though the employee, as in the present case, previously may have received compensation for temporary total incapacity or, as in other cases, for temporary partial incapacity. Nicely v. VEPCO, 195 Va. 819, 823, 825, 80 S.E.2d 529, 531, 532-33 (1954). And, where the permanent loss or loss of use of a member is partial only, "compensation may be proportionately awarded." Code § 65.1-56.

The benefits provided by § 65.1-56 for partial loss are awardable upon a "rating" by the Commission of the percentage of incapacity suffered by the employee. The "rating" determines the ultimate amount of compensation the employee is entitled to receive. Pertinent to the present situation, if an arm injury causes total incapacity of that member, the scheduled compensation would be awardable for 200 weeks; but because the Commission "rated" Hart's loss of arm use at 60%, compensation was "proportionately awarded" by fixing the compensable period at 120 weeks.

Where, as here, an employee suffers the loss of use of a scheduled body member, the compensation provided by § 65.1-56 is not awardable "until the injury has reached a state of permanency, i. e. maximum improvement, when the degree of loss may be medically ascertained." Collins v. G. M. Clements Company, 48 O.I.C. 49 (1966); Nicely v. VEPCO, supra. In other words, before § 65.1-56 benefits are awardable, it must appear both that the partial incapacity is permanent and that the injury has reached maximum medical improvement.

In the present case, it is not questioned that Hart's arm injury was permanent. Whether, however, at the time of Hart's death from an unrelated cause, the arm injury had reached maximum medical improvement is the crucial issue in the case. If the injury had not reached such improvement at the time of his death, Hart could not have been "rated"...