Opinion
Record No. 1448-94-4
Decided: March 21, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin J. Trichilo (Lewis, Trichilo, Bancroft, McGavin Horvath, P.C., on briefs), for appellant.
John F. Anderson (Clinton R. Ritter, on brief), for appellee.
Present: Judges Barrow, Koontz and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Novacon, Inc. and Erie Insurance Exchange, Novacon's workers' compensation carrier (collectively "Novacon" or "employer"), appeal an award of permanent partial disability benefits to Charles L. Sturdivant (Sturdivant) for an injury to his left wrist received October 27, 1992 in a fall from the top of a wall while assisting in the pouring of concrete at his own home. Employer asserts that the commission erred in finding that a contract of employment existed between Sturdivant and employer with regard to work performed by Sturdivant at his home. Employer further asserts that the commission erred in holding that the medical evidence supported a finding that Sturdivant has reached maximum medical improvement. For the following reasons, we affirm the commission's award.
Novacon is a concrete construction company and, at the time of Sturdivant's injury, was owned in part by Sturdivant's brother. Sturdivant worked for Novacon as a concrete finisher. Sturdivant testified that he had an agreement with Novacon to pour concrete at his home for cost and that he would be billed for labor and material. On the day of the accident, Sturdivant was en route to another job site when he received a message to divert to his home to work on pouring concrete there. Sturdivant's brother and wife confirmed that Sturdivant received this message. James Dill, general manager of Novacon, testified, however, that Sturdivant was told he was not needed at the other job site and that he could assist with the project at his home, if he chose. Dill maintained that the only agreement employer had with Sturdivant was to loan him some forms for use in pouring the concrete.
Sturdivant and three other employees worked at Sturdivant's home. Bart Kerns, a Novacon employee, instructed Sturdivant to climb to the top of one of the walls being poured to install "tie downs." While doing this, Sturdivant slipped and fell approximately fifteen feet, fracturing his left wrist.
Sturdivant produced a bill from Novacon for the labor and materials used in the job at his home. His name was among the employees assigned to the job. Dill testified that the work on the bill was never authorized and that the employees named were to have been paid by Sturdivant directly. Dennis Caldwell, a co-owner of Novacon, testified that while he was aware of the agreement with Sturdivant, he had assumed that Sturdivant would not submit hours for the work done by him on his own home.
Sturdivant was treated by Dr. John Zoller for eight weeks. Sturdivant discontinued treatment after his wrist healed and Dr. Zoller instructed him to "use it as normally as possible." Sturdivant did not return to Dr. Zoller until five months later when he sought a permanent disability rating and was given a rating of 18% loss of use to the left arm. At that time, Dr. Zoller noted that Sturdivant "was not having enough problems to seek any treatment. I therefore gave him a prn follow[-]up appointment."
Employer voluntarily paid eight weeks of temporary total disability, but contested Sturdivant's claim for permanent partial disability some five months later. Employer asserted that no contract of employment existed between Novacon and Sturdivant for the work he performed on his own home and that the evidence failed to establish that he had reached maximum medical improvement.
Following an evidentiary hearing, the deputy commissioner found that because Sturdivant had an oral contract with Novacon requiring him to pay for all the labor used in the work done at his home, including his own, Sturdivant's contract of employment with Novacon included the work he was performing on the day of his injury. The deputy commissioner denied Sturdivant's claim, however, on the ground that Sturdivant had not shown that he had reached maximum medical improvement.
The commission, affirming the deputy commissioner's findings concerning the employment relationship, expressly found the testimony of Dill and Caldwell to be "unpersuasive." The commission further found that Dr. Zoller's rating of impairment coupled with the fact that Sturdivant voluntarily discontinued treatment was evidence of maximum medical improvement. Accordingly, the commission reversed the deputy commissioner's denial of benefits and awarded thirty-eight weeks of permanent partial disability.
On appeal, employer asserts that the evidence, even when viewed in the light most favorable to the party prevailing below, Crisp v. Tyson's Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986), does not establish that an employment relationship existed between Sturdivant and Novacon because Sturdivant "reimbursed" Novacon for the wages he was "erroneously paid." We disagree.
The commission found, and we agree, that a contract existed between Sturdivant and Novacon for work to be performed at Sturdivant's home. That contract required Novacon to supply labor and materials. Sturdivant, in turn, agreed to pay Novacon the cost of the labor and materials. This finding of fact is supported by credible evidence and is binding on appeal, Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993), notwithstanding the contrary evidence presented by employer's witnesses and urged upon this Court for consideration. Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
The commission expressly rejected employer's evidence and assertion that Sturdivant's labor was exempt from the contract. Thus, the commission found that no correlation existed between the relationship of Sturdivant and Novacon as client and contractor and Sturdivant and Novacon as employee and employer. We agree. Accordingly, the wages Sturdivant received for the work performed by him at his home were not "erroneously paid" and his payment of the invoice which included the cost of that labor was not a "reimbursement."
Contrary to the assertion made by employer, there was not a lack of economic benefit to Sturdivant as a result of his paying the cost of all labor involved in work performed at his home. Rather, by paying for the labor expended by all of the employees of the contractor, Sturdivant fulfilled his obligation under the contract. Had he not done so, he would have received a double economic benefit-receiving wages for work performed and retaining a payment due Novacon for that work.
Employer further asserts that the commission erred in finding that the medical evidence supports a finding that Sturdivant had reached maximum medical improvement. We disagree. Sturdivant received a disability rating from his treating physician. Although there was no express finding that Sturdivant had reached maximum medical improvement, such a finding is implicit when the degree of loss has been medically ascertained. See Kirk Plastering Co. v. Netherwood, 7 Va. App. 177, 179, 372 S.E.2d 192, 193 (1988).
Relying on County of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977), employer asserts that the possibility of future treatment negates the possibility of a determination of maximum medical improvement. We disagree. In Hart, the claimant died before a medical determination could be made as to whether surgery would benefit his condition. Here, the sole reason for leaving open the possibility of future treatment "prn" was the prospect that Sturdivant's condition could deteriorate and, thus, require additional therapy to return to the then-existing state of function.
The term "prn," from the Latin "pro re nata," meaning "for the occasion as it may arise," is used in medical orders to mean "as needed or as the occasion arises." See Chiricosta v. Winthrop-Breon, 635 N.E.2d 1019, 1024 (Ill.App.Ct.), appeal denied, 642 N.E.2d 1275 (Ill. 1994). Accordingly, Dr. Zoller's recommendation for a "prn follow[-]up appointment" was not a specific statement that future treatment was advised or required. Nothing in the record indicates that Dr. Zoller's rating was other than what it was purported to be-a rating of permanent loss of function to Sturdivant's left arm.
We recognize that the same term is used, unabbreviated, in the legal community, but with a much different meaning. An action taken by the court "pro re nata" is one taken because of the exigencies of the circumstances and contrary to established precedent. See Black's Law Dictionary 1220-21 (6th ed. 1990).
For these reasons, we affirm the commission's award of permanent partial disability benefits.
Affirmed.