York Co. Public Schools v. Dollie Marshall

• Court: Court of Appeals of Virginia
• Decided: September 23, 1997
• Docket: 0384971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia

YORK COUNTY PUBLIC SCHOOLS and VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION * BY v. Record No. 0384-97-1 JUDGE NELSON T. OVERTON SEPTEMBER 23, 1997 DOLLIE M. MARSHALL

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Cecil H. Creasey, Jr. (Sands, Anderson, Marks & Miller, on brief), for appellants.

Hugh B. McCormick, III (Patten, Wornom & Watkins, L.C., on brief), for appellee.

York County Public Schools (employer) appeals from a

decision of the Workers' Compensation Commission awarding Dollie

Marshall medical and permanent partial disability benefits for a

work-related knee injury. Finding credible evidence in the

record to support the commission's decision, we affirm.

The parties are fully conversant with the record in the

cause, and because this memorandum opinion carries no

precedential value, we recite only those facts necessary to the

disposition of this appeal.

On April 28, 1994, Mrs. Dollie Marshall twisted her leg in a

standing pool of water while at work. This twisting tore the

medial and lateral meniscus of her knee. Mrs. Marshall also

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. suffered from a torn anterior cruciate ligament (ACL), but this

injury pre-existed the accident. Both parties have stipulated

that Mrs. Marshall has suffered a compensable injury to her knee,

and the only issues on appeal concern treatment of the torn ACL

relative to the injuries suffered during the accident.

Dr. Treishmann, Mrs. Marshall's orthopedic surgeon,

testified that the meniscus tears destabilized her knee. While

he had already performed surgery to correct these tears, a

further operation is necessary to repair the torn ACL in order to

prevent future deterioration of the knee. He testified that the

destabilization would not have occurred but for the accident and

resulting torn meniscus. Accordingly, the commission awarded

Mrs. Marshall future medical benefits and 25% permanent partial

disability; the amount directly attributable to the meniscus tear

and not the ACL tear. Guided by well-established principles, we construe the

evidence in the light most favorable to the party prevailing

below. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.

App. 503, 504, 339 S.E.2d 916, 916 (1986). The commission's

findings of fact will not be disturbed on review if there is

credible evidence to support them. See Marketing Profiles, Inc.

v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993); Ogden

Allied Aviation v. Shuck, 17 Va. App. 53, 55, 434 S.E.2d 921, 922

(1993). In cases involving pre-existing injuries, the law is

clear: "If the accident accelerates or aggravates a pre-existing

2 diseased condition, the injured party is entitled to

compensation." Liberty Mutual Ins. Co. v. Money, 174 Va. 50,

55-56, 4 S.E.2d 739, 741 (1939); Ohio Valley Constr. Co. v.

Jackson, 230 Va. 56, 334 S.E.2d 554 (1985). The fact that the

accident alone would not have caused the injury without the

pre-existing injury is immaterial. Money, 174 Va. at 55, 4

S.E.2d at 741.

Employer first asserts that the ACL tear, and impairment of

the knee flowing therefrom, is not causally related to the

work-related injury and is, thus, not compensable. However, Dr.

Treishmann testified that the ACL tear alone did not

substantially affect Mrs. Marshall's knee, but that it was the

combination of the two injuries which severely impaired her use

of the limb. Because that determination is supported by credible

evidence, it is binding and conclusive on appeal. See Greif

Cos./ Genesco, Inc. v. Hensley, 22 Va. App. 546, 552, 471 S.E.2d

803, 806 (1996).

Employer next asserts that the permanent partial disability

award was improper because Mrs. Marshall had not proven the

extent of the impairment. He reasons that because Dr. Treishmann

has recommended further surgery to correct the torn ACL, Mrs.

Marshall cannot have reached her maximum medical recovery until

after the surgery. Yet the record indicates that the recommended

surgery will not effect an improvement to her condition. It will

merely cause a "slowing down or prevention of further

3 deterioration." Consequently, Dr. Treishmann was free to

conclude, and the commission was free to believe, that Mrs.

Marshall had reached maximum medical recovery.

Employer finally contends that Dr. Treishmann is only

guessing at the level of impairment to her knee, so no award

should be made. Dr. Treishmann, like any physician, makes

estimates regarding all aspects of patient condition and

treatment. He bases these estimates on his education, many years

of experience as an orthopedic surgeon, and his first-hand

examination of Mrs. Marshall. When the commision made its

finding it considered Dr. Treishmann's estimate, the records upon

which he based his estimate and, most importantly, the fact that

appellants presented no evidence contrary to Dr. Treishmann's

estimate. Since there was credible evidence in support of the

commission's resolution of this issue, we find no merit in

employer's argument that the award was contrary to law and the

evidence. See Boblett v. Commonwealth, 10 Va. App. 640, 652, 396

S.E.2d 131, 137 (1990).

Accordingly, the decision of the commission is affirmed. Affirmed.