Leadbetter, Inc. v. Penkalski

464 S.E.2d 554, 21 Va. App. 427, 1995 Va. App. LEXIS 916
Court of Appeals of Virginia·Decided December 19, 1995·No. 1457942·Published·Cited by 14 cases

Opinion

UPON REHEARING EN BANC

BENTON, Judge.

Leadbetter, Inc. and its insurer appeal from the commission’s award of temporary total disability benefits to Benjamin Penkalski. Leadbetter contends the commission erred in (1) failing to apply the rule of American Furniture Co. v. Doane, 230 Va. 39, 334 S.E.2d 548 (1985), (2) applying the “two causes rule” in awarding temporary total benefits, (3) concluding that Penkalski’s work-related injury by accident partially caused his inability to perform light duty work, (4) finding that any amount of partial disability attributable to the injury by accident supports the award because it contributes to Penkalski’s temporary total disability, (5) finding that part of Penkalski’s loss of earning capacity is attributable to the compensable injury by accident, and (6) ruling that Penkalski had no *430 obligation to market his residual work capacity. A panel of this Court, with one judge dissenting, reversed the commission’s award. See Leadbetter, Inc. v. Penkalski, 20 Va.App. 454, 457 S.E.2d 790 (1995). This Court granted Penkalski’s petition for a rehearing en bane. For the reasons that follow, we affirm the commission’s award.

The parties stipulated many facts of this case and generally do not dispute the material facts. Viewed in the light most favorable to Penkalski, who prevailed before the commission, see R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990), the evidence proved that in April 1991 Penkalski fell and broke both ankles while employed by Leadbetter. His injuries required surgery and other rehabilitation. Pursuant to a memorandum of agreement, Penkalski received an award for temporary total disability benefits.

Under the treatment of Dr. E. Claiborne Irby, Jr., the attending physician, Penkalski made progress and was able to walk following surgery. His rehabilitation after surgery involved exercising his ankles daily as directed by Dr. Irby. With Dr. Irby’s permission, Penkalski began performing restricted light duty selective work for Leadbetter in September 1991. Throughout 1991 and 1992, Dr. Irby reported that Penkalski continued to experience swelling, aching, and discomfort. The doctor ordered him to continue daily stretching and other anide exercises. In addition, Dr. Irby reported that Penkalski suffered a 30% permanent partial loss of function of the left leg and a 20% loss of function of the right leg. The commission awarded Penkalski 87.5 weeks of permanent partial disability benefits for the loss of function of the legs.

As of December 10, 1992, Penkalski was performing restrictive light duty selective work for Leadbetter within the limitations outlined by his doctor. On December 11, 1992, Penkalski suffered a heart attack. Following Penkalski’s heart attack, another doctor performed an angioplasty. During that procedure, arterial plaque was loosened and settled in Penkalski’s toes and feet and caused injury to his toes and feet. Penkalski suffered ischemia of his feet and lost additional *431 function of his feet as a consequence of his ischemia. The heart attack, the ischemia of the feet, and the treatment for those conditions were not a result of Penkalski’s compensable accident and were not work related. However, Penkalski was still disabled by his ankle injuries when he had the heart attack, and he had received orders from Dr. Irby to regularly exercise his ankles.

Further complications from the loosened arterial plaque resulted in the amputation of parts of Penkalski’s toes. Confined to a wheelchair by the heart attack and the resulting complications, Penkalski could no longer perform the exercises prescribed by Dr. Irby. The condition of his ankles deteriorated, increasing his disability.

In September 1993, both Dr. Irby and Dr. John T. Funai reported that Penkalski was totally disabled. Dr. Irby found the total disability resulted from “two causes, one of which is work related and one which is not.” Dr. Funai opined that “the combination of [Penkalski’s] cardiac condition and the potential loss of a foot prohibits any future employment.” Since April 9, 1991, Penkalski has been incapacitated at all times, has been unable to perform the full range of his preinjury duties, and has suffered chronic pain and swelling in his ankles.

Penkalski’s entitlement to permanent partial disability benefits ended September 30, 1993. Because he received no additional disability benefits from Leadbetter, Penkalski filed a change in condition application for benefits. Based upon Dr. Irby’s reports, the deputy commissioner found that the evidence proved that Penkalski’s “disability has two causes, one related to employment and one not related.” Relying on decisions from the Supreme Court and this Court, the deputy commissioner entered an award in favor of Penkalski. On review, the commission affirmed the deputy commissioner’s award.

An employee is entitled to recover compensation for an aggravation or exacerbation of a compensable injury by accident even when the event that caused the aggravation or *432 exacerbation did not involve the workplace. Fairfax Hospital v. DeLaFleur, 221 Va. 406, 409, 270 S.E.2d 720, 722 (1980). See also Wilson v. Workers’ Compensation Comm’r, 174 W.Va. 611, 614-15, 328 S.E.2d 485, 489 (1984); 1 Arthur Larson, The Law of Workmen’s Compensation, §§ 13.00-13.24 (1994). “It is well established that where ... the chain of causation from the original industrial injury to the condition for which compensation is sought is direct, and not interrupted by any intervening cause attributable to the [employee’s] own intentional conduct, then the subsequent [condition] should be compensable.” American Smelting & Refining Co. v. Industrial Comm’n, 25 Ariz.App. 532, 534, 544 P.2d 1133, 1135 (1976). See also Department of Highways v. McCoy, 301 Ky. 765, 193 S.W.2d 410, 412 (1946) (an employee who suffered a work-related hernia was entitled to receive compensation for an aggravation of the hernia caused by the inability to operate due to a subsequently developed unrelated onset of tuberculosis). Recovery of compensation for a subsequent aggravation is barred only if the subsequent aggravation “is the result of an independent intervening cause attributable to [the employee’s] own intentional conduct.” 1 Larson, supra, § 13.00. Numerous courts have recognized this principle with factual variations “but as long as the causal connection is in fact present the compensability of the subsequent condition is beyond question.” Id. § 13.11(b) (footnote omitted).

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Leadbetter, Inc. v. Penkalski, 464 S.E.2d 554, 21 Va. App. 427, 1995 Va. App. LEXIS 916 (Va. Ct. App. 1995).

464 S.E.2d 554 (Leadbetter, Inc. v. Penkalski) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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