                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


HYTERS COAL CO., INC. AND
 OLD REPUBLIC INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 0763-02-3                         PER CURIAM
                                               AUGUST 27, 2002
ORAL R. BRAGG


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (S. T. Mullins; Street Law Firm, L.L.P., on
             brief), for appellants.

             (Clarence E. Phillips; Clarence E. Phillips,
             P.C., on brief), for appellee.


     Hyters Coal Co., Inc. and its insurer (hereinafter referred

to as "employer") contend the Workers' Compensation Commission

erred in finding that (1) Oral R. Bragg's (claimant) claim for

permanent total disability ("PTD") benefits related to his right

foot condition was not barred by the two-year statute of

limitations contained in Code § 65.2-601; (2) claimant's right

foot condition was causally related to his compensable February

6, 1991 left foot injury; and (3) claimant proved he was unable

to use his legs to any substantial degree in gainful employment,

entitling him to an award of PTD benefits.     Upon reviewing the

record and the parties' briefs, we conclude that this appeal is


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
without merit.   Accordingly, we summarily affirm the

commission's decision.   Rule 5A:27.

                    I.   Statute of Limitations

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.   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).

     In ruling that claimant's claim for PTD benefits related to

his right foot was not barred by the two-year statute of

limitations contained in Code § 65.2-601, the commission found

as follows:

               We do not agree with the deputy
          commissioner that Dr. [Calvin] Johnson's
          March 28, 2001 report established that the
          claimant injured his right foot in February
          1991. The better history taken by Johnson
          was in November 2000, when he examined the
          claimant. In those notes, Dr. Johnson did
          not record a right-foot injury. Moreover,
          [Dr. Johnson] appeared to be troubled with
          opining that the 1991 accident injured
          [claimant's] right foot because there was no
          mention of right foot problems at the time
          of the accident. When [Dr. Johnson]
          reexamined his own notes and completed the
          March 28, 2001, report, he erroneously
          concluded that the claimant injured his
          right foot in the accident.

               The claimant has never claimed that he
          injured his right foot in the 1991 accident.
          Rather, his Claim was that, as a result of
          the left-leg injury, he has developed
          right-foot problems. The medical evidence
                              - 2 -
            is replete with physicians' histories of the
            1991 accident, and no history, including
            Dr. Johnson's November 2000 history, records
            a right foot injury. Only in Dr. Johnson's
            interpretation of his history does he report
            a right-foot injury in 1991. We believe
            this was mistaken, and find that the
            evidence cannot reasonably be interpreted to
            show a right-foot injury in 1991.

                 The deputy commissioner denied the
            claim because the claimant failed to file a
            claim for his right foot injury within two
            years of February 6, 1991. The employer did
            not argue that "a compensable consequence
            would be barred by the statute [of
            limitations]," but argued that the claimant
            had a "new injury" to his right ankle that
            was barred by the statute of limitations.
            As set forth above, we do not believe that
            the claimant injured his right foot in the
            February 1991 accident. Moreover, there was
            no evidence of any other "new and separate
            injury" to the claimant's right foot. Thus,
            we believe that the claimant's Claim was
            based on his right-foot problems being a
            compensable consequence of the left-leg
            injury, and not based on "new and separate
            injury." Accordingly, the Claim was not
            barred by Code § 65.2-601 but timely under
            Code § 65.2-708.

(Citation omitted.)

     In light of the lack of any history of claimant injuring

his right foot in the 1991 accident, the commission, as fact

finder, was entitled to weigh Dr. Johnson's medical reports, and

to conclude that in his March 28, 2001 report, he erroneously

concluded that the claimant injured his right foot in the

accident.   Claimant's testimony and the numerous physicians'

histories of the 1991 accident that did not include a right foot

injury, provided credible evidence from which the commission
                               - 3 -
could reasonably infer that claimant did not sustain a right

foot injury in the 1991 accident, but rather that his claim was

based on his right foot problems being a compensable consequence

of the left leg injury.   Accordingly, the commission did not err

in concluding that the claim was not barred by Code § 65.2-601,

but rather was timely under Code § 65.2-708.

                          II.    Causation

     "The actual determination of causation is a factual finding

that will not be disturbed on appeal if there is credible

evidence to support the finding."       Ingersoll-Rand Co. v. Musick,

7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).

     In ruling that claimant proved that his right foot problem

was a direct and natural result of his 1991 left leg injury, the

commission found as follows:

          [T]he claimant suffered from a pre-existing
          right-ankle condition. Dr. [William]
          McIlwain described this condition as a
          "tarsal coalition." There was no evidence,
          however, of any treatment or problems with
          the right ankle before the 1991 accident.
          After the accident, which resulted in the
          eventual loss of the claimant's left leg,
          the claimant developed right-leg problems.
          He was told in 1992 by Dr. [Judson] McGowan
          that he had arthritis. In 1997, Dr. [N.C.]
          Ratliffe told him that he had "weakness" in
          the right ankle.

               Dr. Ratliffe opined on October 27,
          2000, that the claimant's right-ankle
          condition was "caused by his using the right
          ankle more, to compensate for the loss of
          his left leg." Similarly, Dr. McIlwain
          stated that the claimant's right-ankle
          problem "is aggravated by his having to
                                - 4 -
          shift to the right foot because of pain on
          the left. Dr. Johnson's opinion as to
          causation is not very helpful because he was
          under the mistaken belief that the claimant
          injured his right ankle in the February 1991
          accident.

               . . . The claimant testified about his
          difficulty using his prosthesis and gait
          restrictions caused by his left leg. On
          several occasions, the claimant's treating
          physicians noted gait problems arising from
          the loss of the left leg. Most importantly,
          however, the medical evidence, consisting of
          Dr. Ratliffe's and Dr. McIlwain's opinions,
          was uncontradicted that the claimant's right
          ankle problems were the result of the
          left-leg amputation. Although Dr. McIlwain
          believed that the claimant was essentially
          predisposed to right-ankle problems because
          of his tarsal coalition, he also stated that
          the left-leg amputation "aggravated" his
          right ankle condition.

     Claimant's testimony, coupled with the opinions of

Drs. Ratliffe and McIlwain, provide ample credible evidence to

support the commission's findings.    As fact finder, the

commission was entitled to weigh the medical evidence, to accept

the opinions of Drs. Ratliffe and McIlwain, and to reject

Dr. Johnson's opinion.   "Questions raised by conflicting medical

opinions must be decided by the commission."    Penley v. Island

Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).

     Because credible evidence supports the commission's finding

that claimant proved a direct causal connection between the 1991

accident and his right ankle problems, we will not disturb that

finding on appeal.


                              - 5 -
                       III.   PTD Benefits

               As the Supreme Court reiterated in
          Georgia-Pacific Corp. v. Dancy, 255 Va. 248,
          497 S.E.2d 133 (1998), "'[t]he phrases
          "total and permanent loss" or "loss of use"
          of a leg do not mean that the leg is
          immovable or that it cannot be used in
          walking around the house, or even around the
          block. They do mean that the injured
          employee is unable to use it in any
          substantial degree in any gainful
          employment.'"

Gunst Corp. v. Childress, 29 Va. App. 701, 708-09, 514 S.E.2d

383, 387 (1999) (citations omitted).

     In awarding claimant PTD benefits pursuant to Code

§ 65.2-503(C)(1), and in ruling that he proved he was unable to

use his legs to any substantial degree in gainful employment,

the commission found as follows:

          Dr. Ratliffe opined that the claimant would
          "never be able to return to work for his
          left stump." Dr. Johnson believed that the
          claimant was unable to "do activities where
          he is required to stand, walk, or climb for
          prolonged period of time, nor can he use the
          extremities to manipulate levers or foot
          pedals." He also stated that he could not
          work on uneven ground or "do stair climbing
          or ladder climbing." Dr. McIlwain opined
          that "were it not for that pre-existing
          tarsal condition and arthritis, he could use
          the right lower extremity to a substantial
          degree in gainful employment despite the
          amputation on the opposite side." Thus,
          Dr. McIlwain's opinion essentially was that
          the claimant was unable to engage to a
          substantial degree in gainful employment.

               The claimant testified that he had an
          eighth-grade education, having dropped out
          of school after two weeks in the ninth grade
          because of the death of both of his parents
                              - 6 -
             at that time. He has not worked since the
             accident and has not received any additional
             schooling or training. He worked as an
             equipment operator at the time of the
             accident. As early as January 1992,
             Dr. [Lowell] Gill, the first specialist to
             recommend amputation, advised the claimant
             to "retire from his present form of work to
             try to be re-educated through vocational
             rehab or some other agency for consideration
             of a more sedentary type of employment."
             The claimant, however, has not had any
             additional schooling or retraining and faces
             a vocational future with limited education,
             complete loss of one leg and a 25% loss of
             use of the other, and severe restrictions on
             his physical activities.

                  . . . Admittedly, there was evidence
             that the claimant had some residual use of
             his legs. On balance, however, we find that
             the evidence established that, more likely
             than not, the combination of the claimant's
             right and left leg injuries, together with
             his inability to work, have rendered him
             permanently and totally disabled.

        The commission's factual findings are amply supported by

credible evidence, including claimant's testimony and the

medical records and opinions of Drs. Ratliffe, McIlwain, and

Gill.    That credible evidence supported the commission's

conclusion that "the combination of the claimant's right and

left leg injuries, together with his inability to work, have

rendered him permanently and totally disabled."

             "We do not retry the facts before the
             Commission nor do we review the weight,
             preponderance of the evidence, or the
             credibility of the witnesses. If there is
             evidence or reasonable inference that can be
             drawn from the evidence to support the
             Commission's findings, they will not be
             disturbed by this Court on appeal, even
                                - 7 -
          though there is evidence in the record to
          support contrary findings of fact."

Id. at 709, 514 S.E.2d at 387 (citation omitted).

     For these reasons, we affirm the commission's decision.

                                                        Affirmed.




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