COURT OF APPEALS OF VIRGINIA Present: Judges Beales, Powell and Alston Argued at Richmond, Virginia

VENEZIA TRANSPORT SERVICE, INC. AND GRANITE STATE INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 2401-09-2 J UDGE CLEO E. POWELL MAY 11, 2010 HAROLD A. LIMING

FROM THE VIRGINIA WORKER S’ COMPENSATION COMMISSION S. Vernon Priddy III (P. Dawn Bishop; Two Rivers Law Group, P.C., on briefs), for appellants. Wesley G. Marshall (Law Offices of Wesley G. Marshall, PLC, on brief), for appellee.
Venezia Transport Service and Granite State Insurance Company (collectively, “employer”), appeal a decision of the Workers’ Compensation Commission (“the commission”), awarding benefits to Harold A. Liming (“Liming”). Employer argues that the Supreme Court of Virginia’s decision in Owen v. Chesapeake Corp. , 198 Va. 440, 442, 94 S.E.2d 462, 463 (1956), which held that a claimant’s entitlement to perm anent partial disability benefits for vision loss should be determined based on the degree of loss without any artificial ai d or corrective device, does not require that the assessment be made during the course of surgery to implant an artificial lens and that no evidence supports the finding th at claimant suffered to tal loss of vision. Employer further asserts that Creative Dimensions Group, Inc. v. Hill , 16 Va. App. 439, 430 S.E.2d 718 (1993), differs from this case because in Creative Dimensions Group the vision loss was measured before, not during, surgery and, therefore, does not compel the commission’s

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - finding that Liming suffere d total loss of vision. 1 Liming, in response, asks this Court to assess sanctions against employer based upon his ar gument that the case was defended without reasonable grounds. For the reasons that follo w, we affirm the commission’s decision and decline to assess sanctions against employer.
I. BACKGROUND “On appeal, we view the evidence in the lig ht most favorable to the prevailing party before the commission.” Central Va. Obstetrics & Gynecology Assoc., P.C. v. Whitfield , 42 Va. App. 264, 269, 590 S.E.2d 631, 634 (2004). “Factua l findings by the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal.” Southern Iron Works, Inc. v. Wallace , 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). Harold A. Liming, a tractor trailer truck dr iver for Venezia Transport Service, Inc., suffered a compensable injury in the form of a traumatic cataract to his left eye on July 21, 2005. Prior to this accident, Liming’s vision in both eyes was 20/15, he had never had any problems with his eyes, and he had neve r worn corrective lenses.

1 Employer also asserts that medical advances, which it contends are demonstrated in the record, have obviated the concerns about in traocular lens implantation expressed in Creative Dimensions Group and, as such, that the case should be overturnaed. We are not at liberty to ignore th e decision of a previous panel. Commonwealth v. Burns , 240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990). See In re Baskins , 16 Va. App. 241, 245, 430 S.E.2d 555, 558 (1993), judgment reversed by , 247 Va. 506, 442 S.E.2d 636 (1994) (“We are bound by the decision of a prior panel of this Court.”); Robinson v. Commonwealth , 13 Va. App. 540, 543, 413 S.E.2d 661, 662 (1992) (“Under the rule of stare decisis , a decision by a panel of this court is an established precedent.”). Collins v. Commonwealth , 30 Va. App. 443, 449, 517 S.E.2d 277, 280 (1999). Therefore, even if the employer were correct as to the medical advances, we will not consider whether Creative Dimensions Group should be overturned.- 3 - Liming went to see Dr. Binoy R. Jani on October 18, 2005 to complain of “cloudy vision” and “being bothered by glare” for appr oximately one month. On October, 25, 2005, Liming’s vision in his left eye was 20/40 but his glare acuity was greater th an or equal to 20/400. Later, Liming expressed to Dr. Ja ni that he was having difficulty reading, driving, and focusing. He also stated that he felt off balance. On March 23, 2006, Dr. Jani performed surgery on Liming’s left eye to remove the natural lens and replace it with an artificial lens, in a process known as phacoemulsification with intraocular lens placement. Prio r to the surgery, Liming spoke with Dr. Jani about the risks, but felt that he had no options other than to have the operation. At his th ree-month checkup, Liming complained of occasional discomfort with a burning sensation in his left eye. He also reported that he had a floater in his eye. At that time , Dr. Jani was of the opi nion that Liming’s condition was stable. On October 21, 2008, in response to questions posed by counsel for Liming, Dr. Jani agreed that As a result of the July 21, 2005 accidental injury and its sequelae, [it was] reasonable and necessary medical treatment for Mr. Liming to undergo intraocular lens imp lant surgery for his left eye. During the surgical process, a nd following the removal of the natural lens in Mr. Liming’s left eye, and prior to placement of the prosthetic lens implant, . . . Mr . Liming’s vision in his left eye (with regard to the natural part s of his body) [was] worse than 20/200. With regard to the natural condition of Mr. Liming’s left eye, . . . removal of the natural lens [was] permanent. Following a review of the reco rds, Dr. Geoffrey G. Cooper provided the employer with two reports in April 2009. In his first report, Dr. Cooper explained that in ophthalmology, the standard of “best corrected visu al acuity” is based on a person ’s corrected vision and he found using the preoperative, uncorrected visual acuity to be irrational. He compared it to using a- 4 - broken leg, rather than healed le g, as the standard. In his se cond report, Dr. Cooper addressed the risks associated with cataract extraction, stating: [w]hatever “difficulties or future risks” of cataract extraction that existed in 1993 have diminished. Advances in surgery have occurred in a number of ways. The first is that we are using smaller incisions that are self seal ing. In my opinion, the risk of injury to the eye from trauma is now no greater than if surgery had never been performed. The second is improvement in intraocular lens design. The lenses create li ttle or no intraocular inflammation, and hence, have no potential for cr eating glaucoma or accelerated macular problems. Also, the in traocular lenses are UV coated, eliminating UV light exposure as a source for macular injury. The lenses are inert, do not break dow n with time, and should perform well over a lifetime (there are no moving parts to wear out such as in orthopedic implants). He further stated The only risk beyond the immediate post operative time frame would be the risk of developm ent of a secondary membrane (clouding of the posterior capsule behind the implant). This occurs in approximately 25 to 35 percen t of people after cataract surgery, usually within five years. . . . Ot her late post operative risk such as retinal detachment should be no gr eater than in th ese previously traumatized eyes than those in an unoperated cohort. After considering both medical opinions, the deputy commissioner found that Dr. Jani opined that the surgery was reasonable and ne cessary. The deputy commissioner also accepted Dr. Jani’s opinion that Liming’ s vision was worse than 20/200 following removal of the natural lens. Based on these factual findings and this Court’s decision in Creative Dimensions Group , the deputy commissioner awarded Liming permanen t partial disability benefits of $421.95 per
week for 100 weeks. On review, the commission held We find that Dr. Cooper’s report does not provide sufficient evidence to conclude that the day has arrived to reverse the holding from [ Creative Dimensions Group, Inc. v.] Hill

. Dr. Cooper opined that future risks have diminished. They have not been eliminated. In fact, the claimant in this matter continued to report discomfort and a burning sensation three months after the- 5 - surgery. We find that the implant is still considered a corrective device and should not be considered in determining the extent of the claimant’s loss. The commission further found that “Dr. Jani was asked the correct question based upon the facts and holding in [ Creative Dimensions Group, Inc. v.] Hill . The claimant’s vision was worse than 20/200 before the implant and he is entitled to permanent partial disability benefits of 100 weeks.”
II. ANALYSIS A. Commission’s Award Here, employer contends that th e commission erred in relying on Creative Dimensions Group to find that Liming suffered a total loss of vision because his loss should not have been assessed after removal of his natural lens but be fore implantation of the artificial lens. In Creative Dimensions Group , 16 Va. App. at 446, 430 S.E.2d at 722, this Court held that an intraocular lens transplant does not eliminate a claimant’s vision loss and, “as a mere corrective device, the implant should not be considered in determining the extent of claimant’s loss.” In that case, the claimant had perfect vi sion before his indus trial accident. Id. at 440, 430 S.E.2d at 719. As a result of his injury, he developed a traumatic cataract a nd underwent surgery to replace his natural lens with an intraocular lens implant. Id. Claimant’s post-injury, but pre-surgery vision was 20/60-1. Id. at 441, 430 S.E.2d at 719. After removal of his natural lens, his vision was less than 20/200. Id. After the operation, claimant’s vision improved to 20/40+1. Id. Claimant, however, based his application for permanent, total loss of vision on his visual acuity after removal of his natural lens but before implantation of the intraocular lens, i.e. when his vision was 20/200. 2 Id. The employer argued that claima nt should receive permanent partial

2 Employer incorrectly asserts that Creative Dimensions Group differs from this case because there the vision loss was meas ured before, not during, surgery.- 6 - benefits based on visual acuity of either 20/60-1 or 20/40+1. Id. This Court rejected this argument and affirmed claimant’s award of permanent, total vision loss benefits. Id. at 446, 430 S.E.2d at 722. Creative Dimensions Group cannot be distinguished from this case. Liming suffered a compensable injury that required an intraocular lens implant. His vision loss was based on his vision after his natural lens wa s removed but before the artificial lens was implanted. The measurement of Liming’s post-surgical vision without the benefit of prosthesis would be exactly the same as it was after removal of the natural lens duri ng the surgery. The removal of the natural part of the body that afforded Liming any natural sensation and use was total and permanent. The vision and sensation that Limi ng previously experienced with the use of his natural lens had not been and cannot be restored. This is precisely what occurred in Creative Dimensions Group and, therefore, the commission did not err in affirming Liming’s award based on permanent, partial disability for to tal loss of vision in his left eye. B. Sanctions Liming contends that employer’s request fo r review and appeal to this Court were unreasonable and, accordingly, asks this Court to assess the cost of the proceedings against employer, pursuant to Code § 65.2-713(A). Code § 65.2-713(A) states, in pertinent part, that [i]f the Commission or any court be fore whom any proceedings are brought or defended by the employer or insurer under this title shall determine that such proceedings have been brought, prosecuted, or defended without reasonable grounds, it may assess against the employer or insurer w ho has so brought, prosecuted, or defended them the whole cost of the proceedings, including a reasonable attorney’s fee, to be fixed by the Commission. Code § 65.2-713(A) grants this Court the authority to assess against employer the costs of these proceedings including “a reasonable attorney’s fee,” if we determine these “proceedings have been brought, prosecuted, or defended without reasonable grounds.” See Lowes of Short Pump- 7 - Virginia v. Campbell , 38 Va. App. 55, 62, 561 S.E.2d 757, 760 (2002) (awarding fees against employer for appealing “wit hout reasonable grounds”).
In Lowes of Short Pump Virginia , employer raised a number of issues that were procedurally barred because they were rais ed for the first time in this Court. Id. at 61-62, 561 S.E.2d at 760. Employer presented this Court with “no meritorious ‘ends of justice’ or ‘good cause’ basis” for why this Court should review the barred questions presented. Id. Thus, this Court concluded that employer br ought that appeal “without r easonable grounds to support it” and remanded the matter to the commission to assess costs and attorney fees against employer. Here, the deputy commissioner awarded attorn ey’s fees to Liming. The full commission affirmed the deputy commissioner’s opinion with out addressing Liming’s request that the full commission assess the entire cost of the proceeding to employer. Liming now asks this Court to award the entire cost of the proceedings to employer. Even though employer was unsuccessful on appeal, it cannot be said that the pro ceeding was “without reasonable grounds” and we decline to remand the matter to the commission to assess costs and attorney’s fees where the full commission declined to do so. Moreover, “[t]he decision to asse ss fees or costs rests in the sound discretion of the commission and will be reve rsed only for an abuse of that discretion.” NiSource, Inc. v. Thomas , 53 Va. App. 692, 721, 674 S.E.2d 581, 596 (2009) (citing Volvo White Truck Corp. v. Hedge , 1 Va. App. 195, 200-01, 336 S.E.2d 903, 906 (1985)). Therefore, we affirm the full commission’s decision to affirm the deputy comm issioner’s award of attorney’s fees but also affirm the refusal to fu rther assess costs and attorney’s fees as neither was an abuse of discretion.- 8 - III. CONCLUSION For the foregoing reasons, we affirm the co mmission’s award. We further decline to assess sanctions against employer. Affirmed.