Heart Corporation, et al. v Thomas Myerchin

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COURT OF APPEALS OF VI RGN A

Present: Judges Bray, Annunziata and Frank

HEART CORPORATION AND
M CH GAN MUTUAL I NSURANCE COMPANY
MEMORANDUM OPI Ni ON*
V. Record No. 0928- 99- 2 PER CURI AM
NOVEMBER 23, 1999
THOMAS MERCH N
FROM THE VI RGI N A WORKERS' COMPENSATION COMM SSI ON
(S. Vernon Priddy III; Cecil H Creasey, Jr.;
Sands, Anderson, Marks & Mller, P.C, on
brief), for appellants.
(Mark G Wsterfield; Johnston & Wsterfield,
P.C., on brief), for appellee.

Heart Corporation and its insurer (hereinafter referred to
as "enployer") contend that the Wrkers' Conpensation Conmssion
(conmssion) erred in awarding permanent partial disability
benefits to Thonas Merchin (clainant) for a nineteen percent
disability rating to his right leg. Enployer argues that
claimant failed to prove a specific disability rating for his
right leg, where Dr. Young J. You's disability rating applied to
claimant's "lower extremties." Upon reviewng the record and
the briefs of the parties, we conclude that this appeal is

wthout merit. Accordingly, we sunmnarily affirmthe

commission's decision. See Rule 5A: 27.

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

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On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. 	See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
On December 15, 1997, Dr. You wrote as follows:
Mr. Myerchin recently underwent isokinetic
muscle testing. 	Review of the test shows he
does have a mild deficit of strength of the
involved knee compared to the opposite side.
Because it has been more than a year since
his initial injury, this muscle strength
deficit has been considered rather
permanent. 	He still has some anterior
cruciate ligament laxity even though MRI
shows it is not severed completely.
With reasonable degree of medical certainty
from his instability, it has resolved in 10%
partial permanent impairment of the lower
extremities and from his permanent muscle
deficit, it has resulted in another 10%
partial permanent impairment of the lower
extremities.
Combining these two impairments, it has
resulted totally of 19% partial permanent
impairment of the lower extremities.
(Emphasis added.)
The commission concluded that "[w]hen read in light of
other medical evidence, we find that Dr. You's December 15,
1997, letter persuasively establishes a 19% permanent partial
functional loss of the claimant's right leg." 	The commission
recognized that Dr. You used the plural "extremities" more than

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once in his December 15, 1997 letter. 	However, the commission
inferred that he had some difficulty with the use of the English
language but that "[h]is testimony and reports clearly
demonstrate, however, that his permanent partial disability
rating is related solely to the claimant's compensable right
knee injury."
Based upon the totality of Dr. You's December 15, 1997
letter, his medical records, and his deposition testimony, the
commission, as fact finder, was entitled to make such reasonable
inferences. 	"Where reasonable inferences may be drawn from the
evidence in support of the commission's factual findings, they
will not be disturbed by this Court on appeal." 	Hawks v.
Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695,
698 (1988). 	Accordingly, we will not disturb the commission's
factual findings on appeal. 	See id. 	Those findings amply
support the commission's conclusion that claimant proved a
nineteen percent permanent partial disability to his right leg.
We note that Cafaro Constr. Co. v. Strother, 15 Va. App.
656, 426 S.E.2d 489 (1993), a case relied upon by employer, is
distinguishable on its facts from this case. 	In Cafaro, unlike
this case, the claimant did not produce any evidence of a
specific disability rating.

For these reasons, we affirmthe conmssion's decision.

Af firned.