Radisson Plaza Hotelv.Rapetti

Court of Appeals of VirginiaJul 12, 1994
Record No. 2549-93-4 (Va. Ct. App. Jul. 12, 1994)

Record No. 2549-93-4

Decided: July 12, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed.

(Edward H. Grove, III; Brault, Palmer, Grove, Zimmerman, White Mims, on brief), for appellants.

(David Ellis Field, on brief), for appellee.

Present: Judges Baker, Elder and Fitzpatrick


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Radisson Mark Plaza Hotel Joint Venture and its insurer (hereinafter collectively referred to as "employer") contend that the Workers' Compensation Commission erred in finding that Oscar C. Rapetti ("claimant") met his burden of proving that the ten percent permanent partial disability rating assigned to his right lower extremity by Dr. J.C. Gonzalez was casually related to claimant's June 10, 1989 compensable industrial accident. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the commission. Rule 5A:27.

On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "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 reversing the deputy commissioner, the full commission stated that:

On April 22, 1992, Dr. Gonzalez reported a five percent permanent partial disability in the right knee due to decreased stamina, chronic pain, and reduced range of motion. On June 22, 1992, he noted a final diagnosis and recommendation which included a ten percent permanent partial impairment of the right lower extremity due to reduced stamina, chronic pain, and reduced range of motion in the knee. Dr. Gonzalez further stated:

" . . . All of these resulting from an injury at work on December 29, 1989, and reinjury during a second work-related accident on April 30, 1990. . . ." . . . The prior decision by Deputy Commissioner Potter that the claimant's evidence did not establish injury by industrial accident occurring on April 30, 1990, had become final. Therefore, any permanent partial disability must be attributed to the accident of June 10, 1989. We find upon the basis of the medical evidence that the claimant has suffered a ten percent permanent partial disability to the right leg.

We note that in his June 22, 1992 report, Dr. Gonzalez erroneously stated that the date of the first accident was December 29, 1989. The records reflect that Dr. Gonzalez's first treatment of claimant occurred on December 29, 1989. Dr. Gonzalez correctly noted at that time, and on many other occasions throughout his records, that claimant's injury occurred on June 10, 1989.

Dr. Gonzalez's records and June 22, 1992 opinion provide credible evidence to support the full commission's decision. Dr. Gonzalez's opinion that claimant's permanent partial disability was caused by the June 10, 1989 compensable accident and the April 30, 1990 reinjury is undisputed. We recognize that Deputy Commissioner Potter's March 29, 1991 decision, finding that claimant failed to prove a compensable injury by accident occurring on April 30, 1990, had become final. However, "[u]nder the 'two causes' rule if a disability has two causes, one related to employment and one unrelated, benefits are allowed." Shelton v. Ennis Business, Forms, Inc., 1 Va. App. 53, 55, 334 S.E.2d 297, 299 (1985). Dr. Gonzalez linked two incidents as causing the permanent partial disability, one compensable and one not compensable. Thus, under the "two causes" rule, the full commission did not err in awarding permanent partial disability benefits to claimant.

For the reasons stated, we affirm the commission's decision. Affirmed.

Employer does not raise the issue whether claimant proved that he had reached maximum medical improvement. Accordingly, we need not address this issue on appeal.