                               COURT OF APPEALS OF VIRGINIA


Present: Judges Petty, Beales and Huff
Argued at Richmond, Virginia


DAVID’S TOWING & RECOVERY INC. AND
 COMMERCE AND INDUSTRY INSURANCE COMPANY
                                                                 MEMORANDUM OPINION ∗ BY
v.     Record No. 1609-11-2                                       JUDGE WILLIAM G. PETTY
                                                                     FEBRUARY 7, 2012
LARRY NEWCOMB


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 S. Vernon Priddy III (Two Rivers Law Group, P.C., on brief), for
                 appellants.

                 No brief or argument for appellee Larry Newcomb.


       David’s Towing & Recovery Inc. and its insurance carrier (collectively “employer”)

appeal the Workers’ Compensation Commission’s entry of a supplemental award in favor of the

claimant, Larry Newcomb, for permanent partial disability benefits, on account of an additional

10% loss of the use of claimant’s right hand. Employer argues that (1) the commission erred in

finding that claimant carried his burden of proving he was at maximum medical improvement

and that (2) the commission erred in awarding claimant additional permanent partial disability

benefits based on the treating physician’s increase of claimant’s disability rating for his right

wrist from 10% to 20%. For the following reasons, we find no such errors in the commission’s

findings or award. Therefore, we affirm the commission’s award.




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                 I.

       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite below only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal. “On appeal from a decision of the Workers’ Compensation Commission, the

evidence and all reasonable inferences that may be drawn from that evidence are viewed in the

light most favorable to the party prevailing below.” Artis v. Ottenberg’s Bakers, Inc., 45

Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) (en banc).

                                                II.

                              A. Maximum Medical Improvement

       First, employer contends that the commission erred in awarding additional benefits

because claimant failed to prove that at the time of the supplemental award, he had reached

maximum medical improvement. “The claimant has the burden of proving maximum medical

improvement.” Montalbano v. Richmond Ford, LLC, 57 Va. App. 235, 250, 701 S.E.2d 72, 79

(2010). “Permanent partial disability benefits are ‘not awardable until the injury has reached a

state of permanency, i.e. maximum improvement, when the degree of loss may be medically

ascertained.’” Id. (quoting Brown v. United Airlines, Inc., 34 Va. App. 273, 277, 540 S.E.2d

521, 523 (2001)). “‘[A]n employee has reached maximum medical improvement if no

reasonable expectation exists that the employee will obtain further functional improvement from

medical treatment, even though the injury remains symptomatic and disabling.’” Id. (alteration

in original) (quoting Gunst Corp. v. Childress, 29 Va. App. 701, 707, 514 S.E.2d 383, 386

(1999)). “The commission’s determination whether maximum medical improvement has been

reached is a factual finding. Pursuant to statute, the commission’s factual findings are conclusive




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and binding on this Court when those findings are based on credible evidence.” Id. (citation

omitted). Questions of law, however, we review de novo. Rusty’s Welding Serv., Inc. v.

Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc).

           On March 4, 2010, the commission approved the parties’ award agreement and entered

an award in favor of claimant, based on an injury that occurred on June 22, 2009. This award

provided claimant with medical benefits and temporary total disability benefits. Subsequently,

based on a November 2009 medical report from the claimant’s treating physician, the

commission approved a second award agreement on April 30, 2010, entering an award providing

claimant with permanent partial disability benefits for a 10% impairment of claimant’s right

hand. While claimant’s treating physician did not specify that claimant had reached maximum

medical improvement in his November 2009 report, the deputy commissioner in the instant

proceedings below noted that “it is obvious the insurer considered the claimant to be at

[maximum medical improvement] in accepting the doctor’s rating [of 10% disability in

claimant’s right wrist] at that time.”

           In his June 2010 report, which was the basis for the supplemental award before us in this

appeal, the treating physician stated that, due to arthritis, claimant’s disability rating had

increased to 20% impairment. Again, the physician did not specifically state that claimant had

reached maximum medical improvement. Ultimately, the full commission reasoned that “[the

treating physician’s] uncontradicted opinion that the claimant’s condition is deteriorating,

coupled with the agreement of the parties to a permanent partial disability award in November of

2009, sufficiently establishes that the claimant had achieved [maximum medical improvement]

status.”




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       The evidence here supports the commission’s finding that claimant carried his burden to

prove he had reached maximum medical improvement. The parties agreed to the initial award of

permanent partial disability benefits based on the original 10% disability rating. By agreeing to

this award, employer was acknowledging that claimant had reached maximum medical

improvement at that time. Although employer maintains that claimant’s condition subsequently

improved between his first and second examinations by his treating physician, the evidence

supports the commission’s finding that claimant’s condition actually deteriorated during this

time. The commission accepted the opinion of claimant’s treating physician that although

claimant’s range of motion had improved between examinations, the worsening arthritis in

claimant’s wrist sufficiently outweighed the increased mobility to warrant a 10% increase in

claimant’s overall disability rating.

       Because claimant’s achievement of maximum medical improvement had already been

established, and because the commission found that overall, claimant’s wrist had gotten worse,

not better, between examinations, there was no reason to require claimant to re-establish that he

had reached maximum medical improvement to support his supplemental award. Indeed,

employer has pointed us to no legal authority imposing such a requirement. 1 By definition,

someone who is deteriorating is not improving. Accordingly, we hold that the commission did

not err in declining to require new affirmative proof that claimant had reached maximum medical

improvement at the time of his supplemental award.




       1
          The argument section in employer’s brief on this first assignment of error contains no
citations to any legal authority besides citations regarding the standard of review and burden of
proof.


                                               -4-
                                  B. Increase in Disability Rating

       Second, employer contends that the commission erred in giving claimant a supplemental

award based on the treating physician’s opinion. Employer argues that the treating physician

failed to express his opinion “to the required more-probably-than-not standard.” We disagree.

       As is well settled, “‘we do not judge the credibility of witnesses or weigh the evidence on

appeal.’” Artis, 45 Va. App. at 83, 608 S.E.2d at 517 (quoting Celanese Fibers Co. v. Johnson,

229 Va. 117, 121, 326 S.E.2d 687, 690 (1985)). “Rather, we are bound by the commission’s

findings of fact as long as ‘there was credible evidence presented such that a reasonable mind

could conclude that the fact in issue was proved,’ even if there is evidence in the record that

would support a contrary finding.” Id. at 83-84, 608 S.E.2d at 517 (emphasis in original)

(quoting Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415

(1988)). Furthermore,

               “[a] medical opinion based on a ‘possibility’ is irrelevant, purely
               speculative and, hence, inadmissible. In order for such testimony
               to become relevant, it must be brought out of the realm of
               speculation and into the realm of reasonable probability; the law in
               this area deals in ‘probabilities’ and not ‘possibilities.’”

State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206, 208-09, 491 S.E.2d 286, 287 (1997)

(quoting Fairfax Hosp. Sys., Inc. v. Curtis, 249 Va. 531, 535, 457 S.E.2d 66, 69 (1995)

(additional citation omitted)).

       We conclude that the treating physician here expressed his opinion as a probability, not

as a mere possibility. Thus, the commission did not err in finding this opinion credible and in

basing its supplemental award to claimant upon the physician’s opinion.

       The treating physician examined claimant in June 2010 and reported that his

interpretation of three X-rays showed that “the intra-articular portion of [claimant’s] fracture has




                                                -5-
caused some increased post-traumatic arthritis in the mid-portion of his wrist joint.” The

physician diagnosed claimant with a developing “post-traumatic arthritis.” The report also stated

that

               [claimant] was told . . . that because of the x-ray we took here, we
               could definitely increase his degree of permanency in [his right]
               wrist to 20% rather than the 10% we gave him before. I would
               estimate his arm at a 20% loss as a result of the post-traumatic
               arthritis of the right wrist.

       The commission found this opinion credible, noting that the treating physician “was

obviously aware” that the range of motion in claimant’s right wrist had improved. The

commission reasoned that “[d]espite such improvement, [the treating physician] was

nevertheless of the opinion that, at least in part as a result of worsening arthritis, a 10[%]

increase in the claimant’s permanent impairment was warranted.” Although employer argues

that the use of the terms “could definitely increase” and “estimate” indicate a lack of the requisite

probability in the physician’s opinion, this language as used in this context does not negate

probability. All permanent partial disability ratings are medical estimates, and the fact that the

physician said that “we could definitely increase [claimant’s] degree of permanency” does not

imply a mere possibility as opposed to a probability of claimant’s increased disability. Viewing

the evidence and its reasonable inferences in the light most favorable to claimant, the prevailing

party below, see Artis, 45 Va. App. at 83, 608 S.E.2d at 517, we conclude that the commission

was free to interpret the physician’s language as expressing his medical opinion as a probability,

and not as a mere possibility. Therefore, we hold that the commission did not err in finding the

treating physician’s report sufficient to prove that it was more probable than not that claimant’s

disability in his right wrist had increased from 10% to 20%. Accordingly, the commission did

not err in basing its supplemental award to claimant on the treating physician’s opinion.




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                                      III.

For the foregoing reasons, we affirm the commission’s supplemental award to claimant.

                                                                             Affirmed.




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