Record No. 1716-93-2Court of Appeals of Virginia. Argued at Richmond, Virginia.
Decided: August 30, 1994
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Affirmed.
Nathaniel S. Newman (Thompson, Smithers, Newman Wade, on brief), for appellants.
B. Mayes Marks, Jr. (Marks Harrison, P.C., on brief), for appellee.
Present: Judges Benton, Willis and Elder
MEMORANDUM OPINION[*]
JUDGE JERE M.H. WILLIS, JR.:
Airco Industrial Gases contends (1) that credible evidence does not support the commission’s findings, (2) that the commission failed to address Ramos’s limited work capacity, and (3) that the commission failed to address the authorization of Ramos’s referral to Dr. Monroe and of her referrals. We find no error and affirm.
Airco employed Ramos as a production superintendent. Ramos’s duties included moving and lifting items weighing in excess of two hundred pounds. He earned approximately $42,500 annually at the time of his accident.
On October 5, 1988, a CO2 valve opened, causing Ramos to fall thirty-five feet to a point on the ground approximately one hundred and twenty feet from where he had been standing. He suffered a broken back, broken ribs, injuries to his arms and legs, and internal pain and discomfort. He returned to light duty work, but could work only a half-day and not in the plant. Eventually, he returned to full-time employment but remained unable to lift, climb, bend, stand, or work as before the accident.
In June, 1990, Ramos quit Airco for a position with another company. In September, 1990, he quit the new job because he could not perform his duties due to increasing pain in his back and knees. He remained unemployed until mid-1991, when he and his family opened a fast-food restaurant. Since then, he goes to the restaurant, but attempts no physical activities and merely sits at the entrance and greets patrons. He is not paid. His wife and two sons operate the restaurant and receive wages.
On May 13, 1992, Ramos filed an application alleging a change in condition and seeking temporary total compensation benefits beginning February 13, 1992 and payment of medical bills. Airco defended on the ground that Ramos’s disability from February 13, 1992 was not causally related to his October 5, 1988 accident and on the ground that his medical treatment and referrals by Dr. Monroe were unauthorized.
On February 24, 1993, the deputy commissioner determined that Ramos suffered permanent disabilities to his left arm and left foot making him unable to perform his pre-injury job duties and held Airco responsible for all medical treatment causally related to his accident. The deputy commissioner found that Dr. Sidhu had referred Ramos to Dr. Monroe and ordered Airco to pay Dr. Monroe’s charges and for her referrals. However, the deputy found that Ramos failed to prove a reasonable effort to market his residual capacity, noting that he had worked four to five hours daily from April, 1991 in his restaurant. For this reason, the deputy commissioner denied disability benefits.
On March 1, 1993, Ramos wrote the deputy commissioner requesting him to “vacate [his] Opinion, and [issue] a new opinion.” In this letter, Ramos comprehensively recited his claim for benefits and Airco’s defenses and argued that the evidence did not substantiate Airco’s defenses. He argued that the deputy commissioner had correctly held that the referral to Dr. Monroe was authorized. He argued that unrefuted testimony clearly linked his disability to the October 5, 1988 accident. He substantiated this claim with quotations from his medical records and recitals of comments, opinions, and diagnoses made by his treating physicians. He requested the deputy commissioner’s review of this medical evidence. Finally, he argued that the evidence showed clearly that he had been physically and mentally unable to work since September, 1990 due to his deteriorating condition.
The deputy commissioner denied Ramos’s request to vacate his February 24, 1993 opinion but treated the March 1, 1993 letter as a request for review by the full commission. Airco made no timely request for full commission review of any issue but filed a statement on review by the commission memorializing its position in opposition to Ramos’s appeal. In its statement, Airco asserted that the deputy commissioner correctly found that Ramos was but partially disabled and that he had failed to market his residual abilities. Airco requested that the deputy commissioner’s opinion be affirmed.
The commission reversed the deputy commissioner on the issue of payment of disability benefits. It held that the evidence established a change in Ramos’s condition and proved that the cause of his disability was the October 5, 1988 accident. It found that Ramos’s limited activities in his restaurant did not constitute employment or evidence of his ability to work. It awarded Ramos total wage loss benefits beginning February 13, 1992.
Initially, we note that the deputy commissioner denied Ramos disability benefits because, although Ramos was disabled, he “failed to prove that his partial disability [had] rendered him totally incapacitated, or that his marketing effort [had] been adequate.” This holding left Ramos three options to pursue on review: (1) to argue that the evidence proved total disability, (2) to argue that he had marketed his residual abilities adequately, or (3) to argue both.
In his March 1, 1993 letter, Ramos chose the “both” option. He rehashed his claim for benefits by reasserting every point that he had argued before the deputy commissioner. Airco limited its response to the issue of marketing residual work capacity. The commission addressed the review as presented by Ramos, reversed the deputy commissioner’s holding, and awarded total disability benefits.
Airco first contends that the record contains no credible evidence supporting the commission’s finding that Ramos was unable to perform limited work on the date of his application or ninety days prior thereto. It argues that, although the commission found Ramos totally disabled from February 13, 1992, the first diagnosis of total disability was in Dr. Monroe’s report of December 18, 1992. It argues that benefits should not have begun until December 18, 1992. We disagree.
We cannot disturb the commission’s finding if it is supported by credible evidence “such that a reasonable min could conclude that the fact in issue was proved.” Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415
(1988) (emphasis added). The record contains uncontradicted credible medical evidence supporting the commission’s finding that Ramos was disabled as a result of his accident. He testified that he quit his job in September, 1990 due to increased pain caused by his October 5, 1988 injuries. His treating physicians, Dr. Sara Monroe and Dr. Thomas P. Loughran, saw him on eight occasions between January 9 and December 7, 1989, and on four occasions between January 30 and July 17, 1989. Their notes describe continuing complaints relating to Ramos’s injuries. From November 2, 1990 to December 18, 1992, these two physicians treated Ramos on at least ten additional occasions and documented his increased pain and deteriorating condition.
Clearly, the treating physicians’ notes describe a degree of disability. However, the first total disability diagnosis by a physician appears in Dr. Monroe’s December 18, 1992 report. This report stated that pain, suffered as a result of his October 5, 1988 accident, rendered Ramos essentially non-functional and unable to perform even minimal physical activity, work in any capacity, or return to any type of employment. Thus, the medical record clearly supports a finding of total disability from December 18, 1992. This evidence, together with Ramos’s description of his earlier deteriorating condition, supports the commission’s finding of total disability from February 13, 1992 and renders moot the residual capacity marketing issue.
We find no merit in Airco’s argument that because Ramos worked at his restaurant, he should have marketed this residual work capacity. Although Ramos’s medical records from December 9, 1991 through September 3, 1992 refer to his working at his restaurant, these statements appear to utilize a loose definition of the word “work.” The evidence shows that, in fact, Ramos merely sat at a table and greeted people. Thus, substantial evidence supports the commission’s finding of total disability and its finding that Ramos’s activity at his restaurant did not disclose an ability to work.
Finally, Airco contends that the evidence fails to establish that the treatment and referrals by Dr. Monroe were authorized. The deputy commissioner held that those treatments and referrals were authorized. The commission treated that holding as a determined issue, noting that no appeal from the deputy’s finding had been filed by Airco. The commission considered Ramos’s March 1, 1993 letter as an appeal addressing the issue of disability and marketing. The document supports that treatment.
The judgment of the commission is affirmed.
Affirmed.