                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Senior Judge Overton


MARGARET ELAINE INGO
                                             MEMORANDUM OPINION*
v.   Record No. 0835-02-3                         PER CURIAM
                                              SEPTEMBER 17, 2002
MORTON POWDER COATINGS AND
 SEDGWICK OF THE CAROLINAS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Deborah W. Dobbins; Kendall O. Clay; Gilmer,
             Sadler, Ingram, Sutherland & Hutton, on
             briefs), for appellant.

             (Kathryn Spruill Lingle; Theisen & Lingle,
             P.C., on brief), for appellees.


     Margaret Elaine Ingo contends the Workers' Compensation

Commission erred by applying an improper standard when

determining whether she has reached maximum medical improvement

and further erred in finding that she had not reached maximum

medical improvement.     Pursuant to Rule 5A:21, Morton Powder

Coatings, her employer, raises the additional issue whether the

commission erred in retaining jurisdiction over Ingo's claim.

Upon reviewing the record and the parties' briefs, we conclude

that this appeal is without merit.     Accordingly, we summarily

affirm the commission's decision.     Rule 5A:27.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
       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).       So

viewed, the evidence proved Ingo injured her right shoulder when

she slipped and fell on ice.    Pursuant to Memoranda of

Agreements, the commission entered awards granting Ingo

compensation benefits for various periods between August 1, 1990

and April 21, 1991, and for the period beginning April 21, 1991

and continuing.   Ingo has not worked since April 1991 and has

undergone extensive medical treatment rendered by numerous

physicians.   On April 19, 2000, Ingo filed a change-in-condition

application seeking permanent and total disability benefits.

                   I.   Maximum Medical Improvement

       Dr. Marc A. Swanson, a pain management specialist, has been

Ingo's treating physician for the past several years and has

treated Ingo for reflex sympathetic dystrophy.    During these

treatments for injury to her right shoulder, Ingo began having

pain and symptoms in her left arm and face, as well as her right

arm.   On November 4, 1999, Dr. Swanson opined that Ingo's "right

arm present disability and limitations preclude using her right

arm" and indicated he is "not sure to what degree she will get

functional recovery of her left arm, in that we have only been

treating it aggressively over the last several months."

Dr. Swanson also noted that Ingo's left arm and face pain are "a

sequela of her initial injury and her long-term right upper

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extremity functional disability . . . [, that Ingo's] loss is

partial and that there is hope that she will be able to use her

left arm for productive purposes."

     A month later, Dr. Swanson summarized Ingo's condition as

follows:

                  I believe her sympathetic dystrophy
             symptoms, though improved, are going to be
             permanent. I believe the loss is a partial
             one in that she has some use of her hands,
             that hopefully can regain and maintain some
             distal upper extremity function, improving
             that on her left to the level that she
             currently has on her right. It may be,
             however, because of her shoulder range of
             motion and functional disabilities that she
             will have a right total incapacity of both
             arms as a result of her industrial accident.

     Dr. Swanson opined on January 18, 2000 that Ingo was "100%

disabled."    At that time, he reported that Ingo suffers from

long-standing right upper extremity pain and that her left upper

extremity had not responded well to therapeutic intervention.

He noted that Ingo's "pain control remains essentially

unchanged," that she had "marked functional disability

presently," that she could not "enter a workforce," and that

"her self care abilities are markedly impaired."    Dr. Swanson

also noted that Ingo "will potentially benefit from more

interventional therapies pending consultation and advice by a

specialist with greater experience in her syndrome."

     In a March 1, 2000 letter, Dr. Swanson explained that

Ingo's "left upper extremity continues to fail to respond to


                                 - 3 -
therapeutic interventions and she has more persistent distal

motor tone abnormalities and marked loss of distal function."

He also indicated that "[h]er disability is 100% . . . because

she has lost use of both upper extremities."

     Upon referral by Dr. Swanson, Ingo consulted Dr. Timothy R.

Deer concerning other pain management techniques.   In his May

15, 2000 letter to Dr. Swanson, Dr. Deer opined that Ingo

suffers from "a complex regional pain syndrome type I on both

upper extremities, markedly worse on the right side."   Dr. Deer

noted that Ingo had undergone continuous epidurals, which "was

helpful, and therefore, she most likely would do well with an

intrathecal pump."   Dr. Deer also noted that due to the location

of Ingo's pain, which was mostly in her arms and shoulders, he

would recommend that she consider undergoing a spinal cord

stimulation trial before placement of an intrathecal pump.

Dr. Deer recommended that Dr. Swanson consider those treatment

options.

     In denying Ingo's application, the commission ruled that

"while the evidence indicates that [Ingo] has a permanent

impairment, it fails to conclusively establish that [she] has

reached maximum medical improvement."   The commission also ruled

that the evidence "failed to establish a rating to each member

as required by the Act."   In so ruling, the commission found as

follows:



                               - 4 -
     In view of the fact that [Ingo] was
under active treatment, that there was
potential for the intrathecal pump and nerve
stimulator to improve [Ingo's] symptoms, and
in the absence of any definitive statement
from Dr. Swanson either before or after the
evaluation by Dr. Deer concerning whether
[Ingo] has in fact reached maximum medical
improvement, we cannot find that [Ingo] has
met her burden of establishing maximum
medical improvement. The medical evidence
leads us to believe that [Ingo] may
potentially obtain further functional
improvement from medical treatment.

     Moreover, [Ingo] has, at this time,
failed to establish a rating to each member
as required by the Act. In this case,
[Ingo] had the burden of providing a ratable
loss of function in both upper extremities.
Dr. Swanson, the only physician to address
this issue, has even upon a request for
clarification from [Ingo] simply stated that
her "disability is 100% . . . because she
has lost the use of both upper extremities."
He also noted that her pain medication and
other complications from her protracted
disability compounded her mechanical
limitations because of the upper extremity
impairment. In his January 2000 report, the
doctor noted additional factors including
progressive side effects such as depression
or other significant psychiatric
difficulties that "will contribute further
to her disability."

     Although Dr. Swanson considers [Ingo]
100% disabled, he has not specified a rating
for each member as required by the Act.
Even if we were to find the doctor provided
a 100% to each extremity, we cannot
determine from the evidence presented how
such a determination was reached and whether
the disability was based solely on
functional loss of use or other
considerations such as medication or
psychiatric issues.




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     Code § 65.2-503(C)(1) provides compensation for permanent

and total incapacity when there is "[l]oss of both hands, both

arms, both feet, both legs, both eyes, or any two thereof in the

same accident."   Furthermore, Code § 65.2-503(D) provides that

"the permanent loss of the use of a member shall be equivalent

to the loss of such member, and for the permanent partial loss

or loss of use of a member, compensation may be proportionately

awarded."   To meet her burden of proof, Ingo was required to

prove that she is unable to use her permanently impaired members

in gainful employment.   See Virginia Oak Flooring Co. v.

Chrisley, 195 Va. 850, 857, 80 S.E.2d 537, 541 (1954).     In

addition, Ingo was required to "establish that [she] has

achieved maximum medical improvement and . . . [her] functional

loss of capacity [must] be quantified or rated."   Cafaro Constr.

Co. v. Strother, 15 Va. App. 656, 661, 426 S.E.2d 489, 492

(1993).

     The commission applied these principles in reviewing the

evidence and explicitly made findings consistent with the

standards required by the statute and the case law.

Accordingly, we hold that Ingo's contention that the commission

applied an inappropriate standard is meritless.

     Furthermore, the medical records of Drs. Swanson and Deer

support the commission's finding that alternative therapies and

treatments, which are currently under consideration for Ingo,

could potentially improve her symptoms and functional capacity.

                               - 6 -
Indeed, as late as January 2000, Dr. Swanson opined that Ingo

might benefit from additional interventional therapies.

Dr. Swanson's reports contain no indication that Ingo has

reached maximum medical improvement.

     In addition, the record contains no evidence from any

physician assigning a specific rating of the functional loss of

use of either of Ingo's upper extremities.       See Cafaro, 15

Va. App. at 661, 426 S.E.2d at 492.       Although Dr. Swanson opined

that Ingo is 100% disabled, he has not specified a rating for

each of Ingo's upper extremities.

     The principle is well established that when the

commission's opinion is based upon the results of a medical

diagnosis, that determination is a factual finding based on

credible evidence and is binding on appeal to this Court.         See

Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d

507, 510-11 (1983).      Based upon this record and the commission's

findings, we cannot conclude as a matter of law that Ingo's

evidence proved she has reached maximum medical improvement.

Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d

833, 835 (1970).

                   II.    Retention of Jurisdiction

     The commission concluded its opinion with the following

statement:   "In view of our finding that [Ingo] has a permanent

disability that has not reached maximum medical improvement, we

will retain jurisdiction over this case until such time as the

                                  - 7 -
degree if any of permanency can be determined."   The employer

contends that the commission improperly retained jurisdiction

over Ingo's claim.

     In Brown v. United Airlines, 34 Va. App. 273, 540 S.E.2d

521 (2001), we held that when the commission denied a claim on

the ground that the claimant had not yet reached maximum medical

improvement and removed it from the hearing docket, that action

did not constitute a dismissal of the claim.   Id. at 281, 540

S.E.2d at 525.   In this case, the commission ruled that although

the medical evidence proved that Ingo established a permanent

impairment, she failed to prove that she has reached maximum

medical improvement.   The commission did not dismiss Ingo's

claim and explicitly retained jurisdiction over her claim.

Based upon our holding in Brown, we find no merit in the

employer's argument that the commission erred in retaining

jurisdiction over Ingo's claim.

     For these reasons, we summarily affirm the commission's

decision.

                                                           Affirmed.




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