Federal Mogul, etc. et al. v Ernest L. Quesenberry

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
FEDERAL MOGUL/BLACKSBURG PLANT
AND
TRAVELERS INDEMNITY COMPANY
OF ILLINOIS 	MEMORANDUM OPINION*
PER CURIAM
v. 	Record No. 2929-95-3 	JUNE 11, 1996
ERNEST LEROY QUESENBERRY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Linda Davis Frith; Monica L. Taylor; Gentry,
Locke, Rakes & Moore, on briefs), for
appellants.
(Joseph J. Steffen, Jr., on brief), for
appellee.
Federal Mogul/Blacksburg Plant and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission ("commission") erred in awarding
permanent partial disability benefits to Ernest Leroy Quesenberry
("claimant"). 	Employer argues that the commission erred in
finding that claimant proved he had reached maximum medical
improvement. 	Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. 	Rule
5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	R.G. Moore Bldg. Corp. v.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission if supported by credible
evidence are binding upon this Court. 	James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
On June 21, 1992, claimant injured his right knee while in
the course of his employment. 	Employer accepted the injury as
compensable and claimant received temporary total disability
benefits. 	Claimant returned to work on June 1, 1993. 	On January
4, 1995, claimant filed his second application for permanent
partial disability benefits, his first application having been
denied by the commission due to claimant's failure to prove
maximum medical improvement.
On June 17, 1993, Dr. John A. Cardea, treating orthopedic
surgeon, opined that claimant had sustained a sixty-five percent
permanent impairment to his right knee. 	Dr. Cardea told claimant
that a knee fusion or a total knee replacement were the only
further treatment he could offer. 	Claimant refused the knee
fusion and told Dr. Cardea that he would consider the total knee
replacement. 	Dr. Cardea explained that, if claimant successfully
underwent total knee replacement surgery, his disability would be
reduced to thirty percent. 	However, Dr. Cardea acknowledged that
a total knee replacement would not give claimant a lifetime of
relief, but only ten to fifteen years at the most.
On October 27, 1993, Dr. S. R. Mackay, another of claimant's
treating orthopedists, opined that claimant had reached maximum

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medical improvement and that at "some time in the future" he
might be a candidate for total knee replacement surgery.
On November 2, 1993, Dr. Cardea opined that claimant had
"reached his maximum medical benefit," and that any further
benefit would come from a knee fusion or total knee replacement.
However, he recognized that both procedures posed "grave risks."
On March 30, 1994, Dr. Mackay opined that claimant might
need a total knee replacement at some time in the future,
"although this might not be for another several years." 	Dr.
Mackay also stated that, even if claimant had the total knee
replacement surgery, he might not improve and the surgery could
increase his disability. 	Dr. Mackay deferred for a year
determining whether claimant had reached maximum medical
improvement. 	On May 8, 1995, Dr. Mackay opined that he found no
change in claimant's impairment and that it was permanent. 	Dr.
Mackay stated that "at this time we have determined that the
[total knee replacement] is 'not necessary' but might become so
in the future."
In awarding permanent partial disability benefits to
claimant, the commission found that he had reached maximum
medical improvement and had sustained a sixty-five percent
impairment to his right knee based upon Dr. Cardea's rating. 	The
commission rejected employer's contention that claimant had not
reached maximum medical improvement because of the possibility
that he would undergo total knee replacement surgery at some time

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in the future.
In order for the commission to award permanent partial
disability benefits pursuant to Code § 65.2-503, "it must appear
both that the partial incapacity is permanent and that the injury
has reached maximum medical improvement." 	County of Spotsylvania
v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977). 	The
commission's decision is supported by credible evidence,
including the medical records and opinions of Drs. Cardea and
Mackay. 	They opined that claimant's impairment was permanent and
that he had reached maximum medical improvement. 	Their records
support the commission's conclusions that the possibility of
claimant undergoing a total knee replacement and of obtaining a
positive result was speculative, and that any benefit he might
derive from the proposed surgery would not be permanent. 	Because
credible evidence supports the commission's decision, it is
binding upon this Court on appeal.
Accordingly, we affirm the commission's decision.
Affirmed.