COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata 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. Williams; Williams, Luck & 

Williams, on brief), for appellant. 

 (James A. L. Daniel; Martha White Medley; 

Daniel, Vaughan, Medley & Smitherman, on 

brief), for appellee. 

 Jim Henry Stanley (“claimant”) contends that the Workers’ 

Compensation Commission (“commission”) erred in finding that he 

failed to prove entitlement to compensation for a permanent 

partial disability to his left leg. 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. See Rule 5A:27. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Unless 

we can say as a matter of law that claimant’s evidence sustained 

his burden of proof, the commission’s findings are binding and 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 
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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 compensable injury 

by accident resulting in a back injury. Claimant underwent back 

surgery in May 1994. Before January 18, 1994, claimant had 

undergone back surgery in January 1991, October 1991, and 

September 1993. On February 24, 1997, claimant filed a claim for 

permanent partial disability (“PPD”) benefits. 

 In a December 15, 1997 letter, claimant’s treating physician, 

Dr. David L. Kelly, Jr., stated “I have previously rated Mr. 

Stanley as having a 40 percent permanent partial disability of his 

spine, relative to multiple operations he has had in the past 

. . . .” In a January 26, 1998 letter, Dr. Kelly wrote, “As a 

result of multiple operations on Mr. Stanley’s back, he has a 40 

percent permanent partial disability rating in his left leg.” 

 Based upon this evidence, the commission denied claimant’s 

application, relying upon 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. 
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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.