COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder and Humphreys Argued at Richmond, Virginia

CITY OF NORFOLK SCHOOL BOARD MEMORANDUM OPINION * BY v. Record No. 1919

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- 1 JUDGE ROBERT J. HUMPHREYS APRIL 24, 2012 MILDRED DENISE VAUGHAN

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Tamele Y. Hobson , Assistant City Attorney (Office of the City Attorney, on brief) , for appellant. Sidney H. Kelsey, Jr. , for appellee.
The City of Norfolk School Board (“Board”) is ap pealing the August 26, 2011 final order of the Workers’ Compensation Commiss ion awarding Mildred Vaughan (“c laimant”) an award of $552.88 per week for seventy weeks based on a 40% impairment of her left leg. On appeal,

t he Board contends that (1) the full c ommission erred in awarding a 40% disability rating where the medical records lacked any objective findings to support the 40% rating and (2) wh ere the treating physician failed to relate the reflex sympathetic dystrophy (“RSD”) diagnosis to the 40 % disa bility rating given, the full c ommission erred in relying on the treating physician’s opinion. For the reasons that follow, we affirm.
I. Background The incid ent underlying this claim o ccurred on April 18, 2001 when c laimant was employed as a department chairperson for the Board. C laimant was speaking with a teacher in a classroom when a handicapped student in a wheel chair rolled up behind her. Claimant, unaware

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication.- 2

- of the student’s presence, turned around and struck her left knee on the wheelchair. As a result, she experienced ongoing pain in the affec ted knee. Claimant filed a claim with the Workers’ Compensation Commission seeking compensation and medical benefits for her injury. In a January 14, 2002 opinion, the deputy commissioner found that c laima nt suffered a compensable injury arising out of and in the course of her employment. Accordingly, the d eputy c ommissioner awarded her temporary total disability and medical benefits. The Board appealed the award, which the full c ommission affirmed in a S eptember 12, 2002 opinion. Neither party appeal ed to the Court of Appeals. The parties then reached a supplemental agreement for the payment of benefits, which the

c ommission approved on April 5, 2005. Subsequently, the Board filed an application with the c ommission seeking to terminate the April 5, 2005 award of compensation on the basis that c laimant refused vocational rehabilitation efforts. 1 In its December 14, 2006 opinion, the commission found that c laimant refused the vocational rehabilitation services that the Board offered to her; however, it concluded

c laimant cured the refusal by her sincere des ire to return to work. T he c ommissio n entered an award in favor of c laimant for the payment of compensation and medical benefits. The Board then in itiated another proceeding seeking to termina te the c ommission’s December 14, 2006 award , alleging that c laimant wa s released back to full duty. C laimant, on the other hand, requested that the c ommission find that there was a change in her condition and
t hat she be allowed a change in her treating physician. In a September 17, 2009 opinion, the deputy commissioner found that c laimant received a valid release to return to full duty and terminated the c ommission’s December 14, 2006 award. However, the depu ty commissioner also found that c laimant suffered from RSD as a consequence of her accident. As a result,

1 See Code § 65.2

- 603(b).- 3

- c laimant was awarded medical benefits. The c ommission authorized c laimant to change her treating physician to Dr. Antonio Quidgley

- Nevares (“Dr. Qui dgley

- Nevares”). Based on the c ommission’s findi ng that she suffered from RSD, c laimant filed a petition seeking compensation for a 40% permanent impairment of her left leg. The parties submitted evidence in the form of desi gnated medical records and t he c ommission had a hearing on the matter. The submitted evidence included the medical opinions of Dr. Quidgley

- Nevares and
Dr. JoAnn Dervay 2 (“Dr . Dervay”) as to the extent of c laimant’s impairment. Dr. Quidgley

Nevares assigned c laimant a 40% permanent impairment of her left leg due to her complex regional pain syndro me. Dr. Dervay concluded that c laimant only had a 2% permanent impairment in her left leg, and opined that Dr. Quidgley

- Nevares did not include a rationale for his 40% rating. 3
The depu ty c ommissioner issued an opinion on the matter on F ebruary 16, 2011, finding that c laimant was entitled to a 21% award for the permanent impairment of her left l eg. To reach this number, the deputy c ommissioner simply ave raged the ratings given by Drs. Q uidgley

Nevares and Dervay and quoted the “frequent practice of averaging the competing ratings” to determine the level of permanent impairment. Both parties appealed to the full c ommission. In it s August 26, 2011 opinion, the full commission reversed t he deputy c ommissioner’s

o rder. The c ommission reasoned that while Dr. Dervay indicated that she used the AMA Guides, we find that she did not use the tables which show impairment for RSD and therefore her opinion is inconsistent with the previous finding s of this c ommission and inconsistent with opinions of the claimant’s treating physicians. The two percent impairment rating does not include impairment related to her compensable condition. Hence,

2 Dr. Dervay is an orthopedic surgeon, who reexa mined c laimant at the Board’s request.

3 It appears from the record that Dr. Dervay did not actua lly perform any examination on c laimant persona lly, but rather she examined a functional capacity e valuation which was prepared for her by Cindy Free, LPTA/CDE II and Rebecca McLain, DPT.- 4

- we accept the opinion of the claimant’s treating physici an and award benefits for a 40 percent impairment to the left lower extremity. Based on its findings, the c ommissio n entered an award in favor of c laimant for payment of compensation based on the 40 % permanent impairment of her left leg. The Board then n oted this appeal.
I I

. Analysis The Board’s first a ssignment of error is that the full c ommission erred in awarding a 40% disability where medical records lacked any objective findings to support the 40% rating. In essence, the Board’s argument is that Dr. Dervay’s assessment, that c laimant had only a 2% permanent impairment was based on objective testing and , thus , the c ommission should have accepted it. However, t he Board failed to provide any authority for the proposition that a permanent impairme nt rating must be based on objective findings. Thus, we will not consider this issue on appeal. See Rule 5A:20; Wilson v. Commonwealth , 54 Va. App. 631, 638, 681 S.E.2d 74, 78 (2009) ( “Pursuant to [Rule 5A:20] , we have held that ‘[u]nsupported assertions of error do not merit appellate consideration.’” (quoting Jones v. Commonwealth , 51 Va. App. 730, 734, 660 S.E.2d 343, 345 (2008)) )

. Because we reject the Board’s bright

- line rule, we address the c ommission’s finding of a 40% rating a s a finding of fac t , and it is well established that “‘[f]actual findings of the commission will not be disturbed on appeal unless plainly wrong or without credible evidence to support them.’” Gilbane v. Guzman , 59 Va. App. 128, 133

- 34, 717 S.E.2d 433, 436 (2011) (quoting Georgia Pac. Corp. v. Dancy , 17 Va. Ap p. 128, 135, 435 S.E.2d 898, 902 (1993)) . T he

c ommission based its impairment rating on the diagnosis of Dr. Quidg ley

- Nevares. In doing so, the c ommission explicitly stated that it was ignor ing Dr. Dervay’s rating, because it failed to- 5

- account for c laima nt’s previously diagnosed RSD. Dr. Quidgley

- Nevares ’ opinion , on the other hand, recognized that c laimant was suffering from RSD

. “Though not necessarily conclusive, the opinion of the treating physician is entitled to great weight.’” Berglund Chevrolet , Inc. v. Landrum , 43 Va. App. 742, 753 n.4, 601 S.E.2d 693, 698 n. 4 (2004) (quoting H.J. Holz & Son,
Inc. v. Dumas

- Thayer , 37 Va. App. 645, 655, 561 S.E. 2d 6, 11 (2002)). Furthermore, the issue ultimately comes down to which doctor’s opinion the c ommiss ion found credible. It is well established that this Court “ does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses.’” Id. (quoting Wagner Enters., Inc. v. Brooks , 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)). The Board’s second assignment of error i s that Dr. Qui dgley

- Nevares failed to relate

c laimant’s RSD diagnosis to his 40% disabil ity rating and , therefore, the full c ommission erred in relying upon his opinion. This argument is without merit for the same reasons

. Although the Board acknowledges that a treating physician’s diagnosis is entitled to gre at weight, it argues that “the c ommission is free to adopt that which is most consistent with reason and justice.” Wi lliams v. Fuqua , 199 Va. 709, 714 , 101 S.E.2d 562, 567 (1958). Under this rule,
t he Board asks this Court to find that the c ommi ssion was wrong in adopting Dr. Quidgley

Nevares’ rating because his “medical documents are scant at best

. ” The Board then

ree mphasizes that Dr. Dervay’s report is extensive

. Howev er, the Board’s statement of the law is taken out of context. The quote, in its entirety, reads, [w]hile we have said in a number of cases that great weight should be given to the testimony of the a ttending physician, his o pinion is not binding upon the c ommission. The probative weight to be given his evidence is for the c ommission to determine , and if it is doubtful and in conflict wi th other medical evidence, the c ommission is free to adopt that w hich is most cons istent with reason and justice.- 6

- Id. (e mphasis added). As discussed supra , the c ommission did make a determination as to the probative weight to assign to Dr. Quidgley

- Nevares’ opinion, and it found it persuasive. Thus, we will not second guess the decision on appeal

. III. Conclusion Because the Board failed to provide authority to support its assignment of error, and because this Court is bound by the factual findings of the c ommission unless they are plainly wrong or without credible e vidence to support them, we find that the full c omm ission did not err in awarding c laimant a 40% disability. Affirmed.