COURT OF APPEAL S OF VIRGINIA

Present: Judges Bray, Annunz iata and Senior Judge Overton

JIM HENRY STANLEY MEMORANDUM OPINION * v. Record No. 2373 -98-3 PER CURIAM APRIL 20, 1999 TULTEX CORPORATION

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION (Robert A. Willia ms; Williams , Luck & Williams, on brief), for appellant. (James A. L. Daniel ; Martha White Medley; Daniel, Vaughan, Medley & Sm itherman, on brief), for appellee.

Jim Henry Stan ley (“claimant”) contends that the Workers’ Compensation Commission (“commission”) erred in finding that he failed to prov e entitlement to compen sation for a permanent partial disabili ty to his left leg. Upon reviewing th e record and the briefs of the parties, we conclu de that this ap peal is without merit. Accordingly, we summ arily affirm th e commission’s decision. See Rule 5A:27. On appeal, we view the evidence in the light most favorable to the prevailing party below. See R.G. Moore Bl dg. Corp. v. Mullins , 10 Va. App. 211, 212, 390 S. E.2d 788, 788 (1 990). Unless we can say as a matter of law that claimant ’s evidence sustained his burden of pr oof, the commissi on’s findings are binding and

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,- 2 - conclusive upon us. See Tomko v. Michael’ s Plastering. Co. , 210 Va. 697, 699, 173 S.E. 2d 833, 835 (1970). On January 18, 1994 , claimant sustained a compensabl e injury by accident resulting in a back injury. Cl aimant underwent back surgery in May 1994. Before January 18, 1994, claimant had undergone back surg ery in January 1991 , October 1991, and September 1993. On February 24, 1997, cl aimant filed a claim for permanent partia l disability (“PPD”) benefits. In a December 15, 19 97 letter, clai mant’s treating physician, Dr. David L. Kelly, Jr ., stated “I have previously rated Mr. Stanley as having a 40 percent perman ent partial disa bility of his spine, relative to mu ltiple operations he has had in the past

. . . .” In a Januar y 26, 1998 letter, Dr . Kelly wrote, “As a result of multiple operations on Mr. Stanley’s ba ck, he has a 40 percent perman ent partial disabi lity rating in his left leg.” Based upon this ev idence, the comm ission denied claimant’s application, relying up on four reasons set forth by the deputy commissioner as follows: First, that Dr. Kelly’s ratings were not contemporaneous to any physical examination of the claimant. Second that the rating was based on the claimant’s multiple surgeries, some of which pre-existed the claimant’s January 1994 work injury. Third, that the claimant had not clearly reached maximum medical improvement. Fourth, that Dr. Kelly had simply transferred his earlier rating of

this opinion is not designated for publication.- 3 - the claimant’s spine to the leg, without any foundation. No evidence proved that Dr. Kelly’s ratings were given contemporaneous to any examination. In addition, Dr. Kelly’s reports clearly reflect that the rating is the result of claimant’s multiple back surgeries. Thus, claimant failed to prove what portion of his permanent partial disability was caused by the January 1994 work injury. In addition, in response to employer’s written questions dated February 20, 1998, Dr. Kelly agreed that “[t]he wording change in [his] ratings outlined in [his] letters of December 15, 1997 and January 26, 1998 . . . were changes made at the request of Mr. Stanley’s attorney to assist him in pursuing his claim for workers’ compensation benefits.” Finally, no evidence proved that claimant had reached maximum medical improvement. In fact, on February 27, 1995, Dr. Kelly wrote to claimant that his symptoms would “wax and wane.” Based upon this record, we cannot say as a matter of law that claimant’s evidence sustained his burden of proving a permanent partial disability to his left leg that is compensable pursuant to Code § 65.2-503. For these reasons, we affirm the commission’s decision. Affirmed.