Present: All the Justices
GEORGIA-PACIFIC CORPORATION
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 970867 February 27, 1998
CLAUDE F. DANCY
FROM THE COURT OF APPEALS OF VIRGINIA
Code § 65.2-503 of the Virginia Workers’ Compensation Act
generally deals with compensation for permanent loss. It
provides that compensation shall be awarded pursuant to Code
§ 65.2-500 for permanent and total incapacity when there is:
“Loss of both hands, both arms, both feet, both legs, both eyes,
or any two thereof in the same accident. . . .” § 65.2-
503(C)(1). The statute further provides that: “In construing
this section, the permanent loss of the use of a member shall be
equivalent to the loss of such member . . . .” § 65.2-503(D).
Code § 65.2-500 measures the compensation for total disability.
The issue we decide is whether the Court of Appeals erred
in affirming a ruling of the Workers’ Compensation Commission.
The Commission determined the claimant was entitled to
compensation for permanent and total incapacity when the
evidence showed that the claimant suffers a permanent injury to
both legs and that “the combination of the two leg injuries
renders him unemployable.” We hold the Court of Appeals did not
err and will affirm.
Appellee Claude F. Dancy, the claimant, sustained serious,
compensable injuries in an industrial accident on May 20, 1985
in Jarratt on the premises of his employer, appellant Georgia-
Pacific Corporation. The claimant, age 38 at the time, was
crushed under falling lumber. He sustained extensive fractures
of both legs, injuries to both knees, and damage to his left
hip, foot, and ankle. Subsequently, the self-insured employer
paid the claimant under several awards entered by the Commission
for temporary total and permanent partial disability. See
Georgia Pacific Corp. v. Dancy, 17 Va. App. 128, 435 S.E.2d 898
(1993), in which the Court of Appeals affirmed the Commission’s
award of temporary total disability benefits based on claimant’s
June 1991 application.
In July 1994, the claimant filed an application with the
Commission alleging a change of condition and sought an award
for permanent total disability under Code § 65.2-503(C). At the
subsequent hearing on the application before a deputy
commissioner, the evidence showed that claimant “continued to
suffer” from a 100% disability to his left leg and a 15%
disability to his right leg as a result of the industrial
accident. The deputy concluded from the evidence that the
claimant “cannot use his legs in gainful employment.” Based on
these findings, the deputy entered an award for compensation for
permanent total disability from December 19, 1994 at the rate of
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$295.00 per week with medical benefits to “continue for as long
as necessary.”
Upon review, the full Commission affirmed the deputy.
Interpreting Code § 65.2-503(C)(1), the Commission found “that
the claimant suffers a permanent injury to his right leg, albeit
less serious than the left, and that the combination of the two
leg injuries renders him unemployable.” The Commission said
“the claimant has no marketable capacity for employment that
would require use of his legs, i.e., that he cannot use his legs
in gainful employment.”
Upon appeal, a panel of the Court of Appeals unanimously
affirmed the Commission’s award. Georgia-Pacific Corp. v.
Dancy, 24 Va. App. 430, 482 S.E.2d 867 (1997). The Court of
Appeals, answering the employer’s argument, said the Commission
“was not required to make separate findings that each leg is
unusable in employment.” Rather, the Court of Appeals stated,
“the proper inquiry was whether the rated loss of use in Dancy’s
legs rendered both of Dancy’s legs effectively unusable.” Id.
at 437, 482 S.E.2d at 871. Thus, the Court of Appeals held that
the Commission correctly based “its ruling of permanent and
total incapacity on the combined effect of the injuries to both
of Dancy’s legs.” Id.
Determining that the Court of Appeals’ decision involves a
matter of significant precedential value within the meaning of
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Code § 17-116.07(B), we awarded the employer this appeal from
the March 1997 judgment below.
On appeal to this Court, the employer contends that Code
§ 65.2-503(C) requires the claimant to establish that each of
his legs is unusable in employment to qualify him for permanent
and total disability benefits. In other words, the employer
contends, the Commission and the Court of Appeals wrongly
evaluated Dancy’s claim by using a “combined effect” test,
which, according to the employer, “ignores the potential that
one minimally injured limb could still be used in gainful
employment but for the total disability which the other limb
causes.”
The employer points out the claimant was hospitalized in
June 1995 for “multiple health problems.” It notes the July
hospital discharge summary described a number of conditions,
including cellulitis of the left ankle, ulcerations of the left
foot and ankle, severe vascular disease, chronic pulmonary
disease, heart disease, hypertension, old leg fractures with
soft tissue injury and residual disability, arthritis, and
tobacco abuse. The employer contends there is “an absence of
any evidence that the 15% disability to Dancy’s right leg
renders him unemployable, or unable to use the right leg in
gainful employment.” Therefore, the employer argues, the Court
of Appeals erred in affirming the Commission’s award “of
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lifetime benefits for the total loss of use of two members.” We
disagree.
The rulings of the Court of Appeals and the Commission
correctly applied our decisions interpreting the ancestors of
Code § 65.2-503(C)(1) and (D), that is, former §§ 65.1-56(18)
and 65-53(18), both containing language identical to the present
statute.
Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 80
S.E.2d 537 (1954), interpreted former § 65-53(18). There, the
most severe injuries suffered by the claimant in an industrial
accident were comminuted fractures of the upper third of the
femur in each leg. The medical evidence showed the claimant had
a 25% permanent disability to his left leg and a 30% permanent
disability to his right leg.
In affirming the Commission’s award for total and permanent
incapacity, this Court observed: “It is conceded that claimant
in the same accident sustained severe injuries to both legs.
The legs were not lost in the sense that they were severed from
the body, but for the total loss of use of both legs claimant is
entitled to the same compensation as if they had been severed.”
Id. at 856, 80 S.E.2d at 541. The Court noted: “The same
doctors, who stated that claimant had lost only a small
percentage of use of his legs, stated that he was not able to
hold a job and earn a living but ‘he is probably able to do odd
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jobs around the house.’” Id. at 857, 80 S.E.2d at 541. The
Court said: “The phrases ‘total and permanent loss’ or ‘loss of
use’ of a leg do not mean that the leg is immovable or that it
cannot be used in walking around the house, or even around the
block. They do mean that the injured employee is unable to use
it in any substantial degree in any gainful employment.” Id.
Further, the Court stated: “The question of law presented
is whether, in determining the extent of the loss of use of two
members injured in the same accident, the ability of the injured
employee to engage in gainful employment is a proper element for
consideration.” Id. Answering the question in the affirmative,
the Court held: “If two members are injured in the same
accident and it is proven that there is total and permanent loss
or loss of use of both members resulting therefrom,” the
claimant is entitled to compensation for total and permanent
incapacity. Id. at 860, 80 S.E.2d at 542-43.
Borden, Inc. v. Norman, 218 Va. 581, 239 S.E.2d 89 (1977),
interpreted former § 65.1-56(18). There, the injuries suffered
by the claimant in an industrial accident included a comminuted
fracture of the right tibia, severe laceration of the left leg,
and slough of wounds of both legs requiring skin grafting. The
record showed the claimant had a “15% permanent loss of function
of the left leg and a 50% permanent physical impairment of the
right leg.” Id. at 584, 239 S.E.2d at 91. A physician, who saw
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the claimant once two years after the accident, concluded that
claimant was “unfit for any occupation other than a ‘sedentary
type one.’” Id. at 588, 239 S.E.2d at 93. The Commission ruled
the claimant “suffered a permanent loss of the use of both legs
of such extent as to render him unable to market his remaining
capacity for work,” id. at 582, 239 S.E.2d at 90, and awarded
compensation for total and permanent incapacity.
Reversing the Commission, the Court said: “The issue
involved here can be tersely stated. Is [the claimant’s] loss
of use of both legs less than total? If so, he is not entitled
to recover under Code § 65.1-56(18).” Id. at 584, 239 S.E.2d at
91. The Court stated: “No case has been brought to our
attention where an award was made under § 65.1-56(18), and in
which a court held that a 10% to 15% impairment of one leg, and
a 30% to 50% impairment of the other, constituted a total loss
of the use of both legs. And the medical evidence does not
support such a finding here.” Id. at 587, 239 S.E.2d at 93.
The Court said that both the claimant’s attending physician and
his plastic surgeon were of opinion that claimant’s “leg
injuries were not total and that he was able to follow some form
of gainful employment.” Id. at 588, 239 S.E.2d at 93.
Therefore, the Court held the claimant had not “suffered a loss
of both legs, or a loss of the use of both legs, within the
meaning of Code § 65.1-56(18).” Id.
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Factually, the present case is like Chrisley (claimant
unable to use legs to any substantial degree in any gainful
employment), and unlike Borden (claimant able to follow some
form of gainful employment). Neither decision, nor Code § 65.2-
503(C) (which specifies loss of “both legs,” not “each leg”),
supports the employer’s contentions (1) that the claimant must
establish each leg is unusable in employment or (2) that the
Commission violates the statute when it considers the combined
effect of the disability ratings to both legs when determining
entitlement to benefits for total and permanent incapacity.
Accordingly, we hold that the Court of Appeals correctly
affirmed the Commission’s decision, based on credible evidence,
that the combination of the claimant’s right and left leg
disabilities, coupled with his inability to work, rendered him
permanently and totally disabled.
Therefore, the judgment from which this appeal is taken
will be
Affirmed.
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