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Leadbetter Inc. v. Penkalski12/19/1995
OPINION BY JUDGE JAMES W. BENTON, JR.
UPON REHEARING EN BANC
Leadbetter, Inc. and its insurer appeal from the commission's award of temporary total disability benefits to Benjamin Penkalski. Leadbetter contends the commission erred in (1) failing to apply the rule of American Furniture Co. v. Doane, 230 Va. 39, 334 S.E.2d 548 (1985), (2) applying the "two causes rule" in awarding temporary total benefits, (3) concluding that Penkalski's work-related injury by accident partially caused his inability to perform light duty work, (4) finding that any amount of partial disability attributable to the injury by accident supports the award because it contributes to Penkalski's temporary total disability, (5) finding that part of Penkalski's loss of earning capacity is attributable to the compensable injury by accident, and (6) ruling that Penkalski had no
obligation to market his residual work capacity. A panel of this Court, with one Judge Dissenting, reversed the commission's award. See Leadbetter, Inc. v. Penkalski, 20 Va. App. 454, 457 S.E.2d 790 (1995). This Court granted Penkalski's petition for a rehearing en banc. For the reasons that follow, we affirm the commission's award.
The parties stipulated many facts of this case and generally do not dispute the material facts. Viewed in the light most favorable to Penkalski, who prevailed before the commission, see R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990), the evidence proved that in April 1991 Penkalski fell and broke both ankles while employed by Leadbetter. His injuries required surgery and other rehabilitation. Pursuant to a memorandum of agreement, Penkalski received an award for temporary total disability benefits.
Under the treatment of Dr. E. Claiborne Irby, Jr., the attending physician, Penkalski made progress and was able to walk following surgery. His rehabilitation after surgery involved exercising his ankles daily as directed by Dr. Irby. With Dr. Irby's permission, Penkalski began performing restricted light duty selective work for Leadbetter in September 1991. Throughout 1991 and 1992, Dr. Irby reported that Penkalski continued to experience swelling, aching, and discomfort. The doctor ordered him to continue daily stretching and other ankle exercises. In addition, Dr. Irby reported that Penkalski suffered a 30% permanent partial loss of function of the left leg and a 20% loss of function of the right leg. The commission awarded Penkalski 87.5 weeks of permanent partial disability benefits for the loss of function of the legs.
As of December 10, 1992, Penkalski was performing restrictive light duty selective work for Leadbetter within the limitations outlined by his doctor. On December 11, 1992, Penkalski suffered a heart attack. Following Penkalski's heart attack, another doctor performed an angioplasty. During that procedure, arterial plaque was loosened and settled in Penkalski's toes and feet and caused injury to his toes and feet. Penkalski suffered ischemia of his feet and lost additional
function of his feet as a consequence of his ischemia. The heart attack, the ischemia of the feet, and the treatment for those conditions were not a result of Penkalski's compensable accident and were not work related. However, Penkalski was still disabled by his ankle injuries when he had the heart attack, and he had received orders from Dr. Irby to regularly exercise his
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