Giant Food, Inc v. William Robbins

• Court: Court of Appeals of Virginia
• Decided: May 9, 1995
• Docket: 2021944
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, Bray and Senior Judge Hodges

GIANT FOOD, INC. AND STANDARD FIRE INSURANCE COMPANY

v. Record No. 2021-94-4 MEMORANDUM OPINION * PER CURIAM WILLIAM ROBBINS MAY 9, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Roger S. Mackey, on brief), for appellants. (Metin A. Cay; Swiger & Cay, on brief), for appellee.

Giant Food, Inc. (employer) contends that the Workers'

Compensation Commission (commission) erred in finding that

William Robbins (Robbins) (1) proved permanent and total

disability pursuant to Code § 65.2-503 as a result of the loss of

use of both of his legs; (2) proved he could not use his

effective members in gainful employment; and (3) established a

physical change in condition from the time he entered into the

Memorandum of Agreement. Upon reviewing the record and the

briefs of the parties, we conclude that this appeal is without

merit. Accordingly, we summarily affirm the commission's 1 decision. Rule 5A:27.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 1 Because employer's first two questions presented relate to the issue of Robbins' entitlement to permanent and total disability benefits, we will address them as one issue in this opinion. We will not address employer's third question presented, because it was not raised before the commission. On appeal, we view the evidence in the light most favorable

to the party prevailing below. R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "[I]t

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."

Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533

(1990). Robbins sustained a compensable back injury on May 10, 1984.

Thereafter, he underwent extensive treatment, including several

unsuccessful surgeries. Robbins received 500 weeks of temporary

total disability benefits. On September 3, 1993, Robbins filed

an application seeking permanent total disability benefits and

permanent partial disability benefits based on a 75% permanent

loss of use of each leg. Robbins testified that he suffers from

extreme pain in his back that radiates into his legs. The leg

pain is intense and affects his ability to walk, bend, or sit.

Robbins came under the care of Dr. Donald L. MacNay, an

orthopedic surgeon, on June 8, 1984. On August 9, 1993, Dr.

MacNay rated Robbins as suffering from a 75% disability in both

lower extremities as a result of the industrial accident and the

numerous failed surgeries. Dr. MacNay reported atrophy below the

knee on both of Robbins' legs, weakness, loss of strength, and

instability. Dr. MacNay opined that "[o]n a functional level he

remains totally disabled for any form of sustained employment

2 whatsoever."

Anthony Bird, a vocational rehabilitation counselor, opined

that, based upon his knowledge of the job market where Robbins

resides and Robbins' medical history and condition, Robbins is

not a candidate for competitive employment.

The commission found that Robbins suffered from a 75%

permanent loss of use of each leg and that he had reached maximum

medical improvement. The commission also found that Robbins was

permanently and totally disabled from engaging in any gainful

employment due to the permanent loss of use of his legs.

Substantial credible evidence, including Robbins' testimony,

Bird's testimony, and the reports and opinions of Dr. MacNay,

support these findings. The commission, in its role as fact finder, was entitled to

give greater weight to Dr. MacNay's opinion than that of Dr. Ian

Wattenmaker, who examined Robbins at employer's request. The

treating physician's opinion is entitled to be given great

weight. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435,

439, 339 S.E.2d 570, 572 (1986). Moreover, Robbins was not

required to show that his legs were immovable or could not be

used in walking around the house, rather he was required to prove

that he was unable to use his legs in any substantial degree in

any gainful employment. See Virginia Oak Flooring Co. v.

Chrisley, 195 Va. 850, 857, 80 S.E.2d 537, 541 (1954). Robbins

presented credible evidence that met this burden.

3 Accordingly, the commission's finding that Robbins is

permanently and totally disabled pursuant to Code § 65.2-503 is

binding and conclusive upon us on appeal.

Affirmed.