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. 
 2 

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 
 3 

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 
 4 

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.