Margaret Elaine Ingo v. Morton Powder Coatings, et ( 2002 )

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
- 2 -
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.
- 5 -
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.
- 8 -