COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
GEORGIA-PACIFIC CORPORATION
OPINION BY
v. Record No. 1805-96-2 JUDGE JAMES W. BENTON, JR.
MARCH 25, 1997
CLAUDE FRANKLIN DANCY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Cecil H. Creasey, Jr. (Mark M. Caldwell, III;
Sands, Anderson, Marks & Miller, on briefs),
for appellant.
Brian J. Cusce for appellee.
Georgia-Pacific Corporation appeals from a ruling of the
Workers' Compensation Commission granting Claude Franklin Dancy
permanent total disability benefits. Georgia-Pacific contends
that the commission erred (1) as a matter of law in awarding
permanent total disability benefits, (2) in finding that Dancy
suffered a permanent loss of use of his right leg, and (3) in
refusing to allow after-discovered evidence. For the reasons
that follow, we affirm the commission's ruling.
I.
Dancy suffered a compensable injury by accident on May 20,
1985, when his legs were crushed by boards on a conveyor. As a
result, the commission awarded Dancy temporary total disability
benefits. Before the temporary total disability benefits
terminated, Dancy filed a claim for permanent total disability
benefits.
At the evidentiary hearing, the evidence proved that when
Dancy slipped onto a discharge conveyor, a load of boards hit
him. Dancy's left foot was crushed, his left leg was broken in
four places, his right leg was broken in several places, and his
right knee was damaged. Dancy's left hip also was injured.
Two days after the accident, Dr. John Cardea, an orthopaedic
surgeon, performed closed reduction surgery to repair fractures
of Dancy's left and right tibias and his left femur. Dancy also
was treated for crush injuries to both legs, his left ankle, and
foot and for internal derangement of his left knee. Because
Dancy continued to have pain, Dr. Cardea performed additional
surgery. A year later, Dr. Cardea reported that Dancy still had
problems with his right ankle and severe problems with his left
leg, foot, and ankle.
In 1987, Dr. Cardea suggested that Dancy attempt to return
to work. After Dancy worked for six hours, a physician sent him
home. When Dancy returned, he worked for only two days because
his left leg became swollen and he could no longer stand.
Because Dr. Cardea was out of town at the time, Dancy saw a
company doctor, who told Dancy he "had no business in that plant
to start with." After Dr. Cardea saw Dancy, he opined, "I do not
think that he is ever going to return to work under these
circumstances."
Following Dancy's failed attempt at work, Dr. Cardea
reported that Dancy also had problems with his right leg because
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he began "put[ting] all his weight on the right leg and his ankle
and leg hurt." In 1991, Dr. Hallett H. Mathews reported that
Dancy "might have more degeneration in his right knee as he takes
stress from his left knee." Dr. Cardea also reported that Dancy
"has pain in his right knee which intermittently causes giving
way of the knee. That pain sometimes goes down into his right
ankle."
On September 11, 1994, Dr. Cardea completed a disability
assessment form. He opined that Dancy had a one hundred percent
disability to his left leg and a fifteen percent disability to
his right leg. Dr. Cardea added that Dancy could not "stand for
longer than [one hour], . . . sit for greater than [two hours] at
a time, . . . climb, stoop, crawl, work on uneven ground, [or]
work in extreme[] . . . [t]emperature[s]." On June 16, 1995, Dr.
Cardea reported that Dancy could work, subject to the
restrictions contained in his September 1994 report.
Dancy continued to see Dr. Cardea until a year before the
hearing. Dancy testified that he had most recently been treated
by Dr. Prince, his family physician, and Dr. Evans, a vascular
surgeon. Dancy was hospitalized from June 24, 1995 until July
15, 1995 for a variety of health problems, including "cellulitis
of the left leg, with [two] ulcerations of the left lateral
ankle." At that time, Dr. Prince stated that Dancy "has had a
non-healing ulcer of his left ankle for some time that has failed
to respond to conservative outpatient medical management." Dr.
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Prince referred Dancy to Dr. Evans for "aggressive management of
his left leg ulcerations." Dr. Evans reported that Dancy
suffered from "arterial occlusion of [the] anterial tibial artery
[caused by the] previous trauma," and a "[c]hronic venous
insufficiency [caused by the] previous trauma."
Dr. Prince reported that Dancy "suffers with total
disability and is unable to engage in any gainful employment as a
result of his previous traumatic injuries sustain[ed] in 1985,
his current physical condition, previous training and educational
background." Dr. Evans opined that Dancy's medical problems were
such that he could lose his left leg.
Dancy testified that he has steel pins in both legs, that
his left leg and foot hurt all the time, and that his right leg
and knee hurt all the time. In addition, he testified that his
feet and legs still swell after he stands for a while and his hip
bothers him when he walks a lot. He uses a cane to walk.
The record also proved that Dancy had a tenth grade
education. Prior to his employment at Georgia-Pacific, Dancy had
been employed in jobs involving physical labor. He had bagged
groceries, pumped gas, and loaded trucks and ships for retailers.
When Dancy served in the U.S. Army, he drove trucks and hauled
ammunition and water.
Terry Stacey, a rehabilitation counselor who had met with
Dancy in 1992, testified that "recognizing his limited education,
his time in the service[,] . . . where he lives, [and] his
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medical condition, . . . there were some things, selective work,
at least on a part time basis, that he could do for the rest of
his life providing that there were no other complications."
Stacey stated that Dancy could work at a nursery watering flowers
for up to four hours per day, work at a senior citizens' home or
a medical clinic as a driver, or work as a "customizer" at a car
wash. Stacey testified, however, that he had not reviewed the
medical reports in the record from Dr. Prince and Dr. Evans
concerning Dancy's current condition.
Following the evidentiary hearing, the deputy commissioner
found that Dancy suffered a one hundred percent impairment of his
left leg and a fifteen percent impairment of his right leg. He
also found that the evidence proved "Dancy cannot use his legs in
gainful employment." Thus, the deputy commissioner found that
Dancy was permanently and totally disabled and awarded Dancy
benefits of $295 per week.
After the deputy commissioner issued his opinion,
Georgia-Pacific requested that the commission reopen the record
for additional evidence. Georgia-Pacific attached to its request
a letter Dr. Prince had written to Dancy's attorney that was
dated September 29, 1995, and argued that the letter undermined
previous opinions offered by Dr. Prince.
On its review of the deputy commissioner's award, the
commission denied Georgia-Pacific's request to reopen the record.
The commission also found as follows:
The record establishes, and
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[Georgia-Pacific] does not dispute, that
[Dancy] cannot use his left leg in gainful
employment. He suffered femur and tibia
fractures to this leg, as well as knee
injuries, ankle and foot crush injuries, and
also vascular diseases relating to
circulatory problems in that leg beginning
from a time proximate to the accident. The
most recent ulcerations at the site of the
ankle and foot skin graft areas, which
produced conditions that required
hospitalization in July 1995, have been
reasonably attributed to the work accident.
[Dancy's] physicians have also noted that the
left leg has atrophied and is used little if
any for weight bearing. [Dancy] ambulates by
use of a cane and bearing his weight on the
right leg. Both Dr. Cardea on December 7,
1987 and Dr. Mathews on June 28, 1988 rated
the disability to that leg at 100%, and the
record does not show any improvement since
1988. Rather, the medical records show that
[Dancy's] left leg condition has even
deteriorated since then.
* * * * * * *
Also, Dr. Cardea on November 5, 1991, and
[Dancy] at the evidentiary hearing, reported
that his right knee would occasionally give
way. We find from the evidence that [Dancy]
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 found that the evidence proved a rated loss to
both legs and that Dancy cannot use his legs in gainful
employment. Accordingly, the commission affirmed the award.
II.
Georgia-Pacific first argues that the commission erred, as a
matter of law, in failing to make a separate finding that Dancy
suffered a permanent loss of use of his right leg. We disagree.
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Code § 65.2-503 provides, in pertinent part, as follows:
C. Compensation shall be awarded pursuant
to § 65.2-500 for permanent and total
incapacity when there is:
1. Loss of both hands, both arms, both
feet, both legs, both eyes, or any two
thereof in the same accident.
* * * * * * *
D. In construing this section, the
permanent loss of the use of a member shall
be equivalent to the loss of such member, and
for the permanent partial loss or loss of use
of a member, compensation may be
proportionately awarded.
"[I]n determining the extent of the loss of use of two
members, the inability of the injured employee to engage in
gainful employment [is] a proper element to . . . consider[]."
Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 858-59, 80
S.E.2d 537, 542 (1954). Indeed, this Court has held that "[t]he
evidence of a rated loss of twenty-five percent of both legs,
coupled with the additional evidence of [the employee's]
incapacity for employment, supports the commission's finding that
the employee is permanently unemployable as a consequence of
[the] loss of function in both legs." Pantry Pride - Food Fair
Stores, Inc. v. Backus, 18 Va. App. 176, 180, 442 S.E.2d 699, 702
(1994).
The medical evidence in this record proved that Dancy had a
rated loss of one hundred percent and fifteen percent,
respectively, of his left and right legs. The commission found
from credible evidence in the record that "the combination of the
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two leg injuries render[ed Dancy] unemployable." The commission
was not required to make separate findings that each leg is
unusable in employment. See id. Rather, the proper inquiry was
whether the rated loss of use in Dancy's legs rendered both of
Dancy's legs effectively unusable. Accordingly, we hold that the
commission did not err in basing its ruling of permanent and
total incapacity on the combined effect of the injuries to both
of Dancy's legs. See id.
III.
Georgia-Pacific next argues that the evidence was
insufficient to prove that Dancy could not use his right leg in
employment. Because we have held that this separate finding is
not necessary and that Dancy needed to show only that the
combined effect of the injuries to both of his legs rendered his
legs unusable, this argument has no merit.
The evidence was sufficient to support the commission's
finding that the combination of the two leg injuries rendered
Dancy's legs unusable. "Findings of fact made by the commission
are binding on this court if they are supported by credible
evidence." Pantry Pride, 18 Va. App. at 180, 442 S.E.2d at 702.
Dr. Cardea's disability rating supports the commission's finding
that Dancy had a one hundred percent disability in his left leg
and a fifteen percent disability in his right leg. Moreover, the
commission's finding that Dancy was unemployable was supported by
the reports of Dr. Prince, who stated that Dancy was "unable to
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engage in any gainful employment."
Although Dr. Cardea's earlier report indicated that Dancy
could work subject to numerous restrictions and Stacey identified
types of jobs that allegedly could satisfy the restrictions, the
commission found that "Stacey did not represent that . . . such
jobs [were] available." The commission also found that complying
with Dr. Cardea's restrictions "would require extraordinary
accommodation by an employer." Furthermore, Stacey's testimony
did not take account of the contrary disability opinions of Dr.
Prince and Dr. Evans.
Moreover, credible evidence supports the commission's
decision giving Dr. Cardea's disability conclusions "little
probative weight." The record contains "no evidence that [Dr.
Cardea] has seen [Dancy] since September 11, 1994." Because
"[t]he credibility of . . . expert witness[es] and the weight to
be accorded the evidence [are] matters within the province of the
[fact finder]," Horsley v. Commonwealth, 2 Va. App. 335, 339, 343
S.E.2d 389, 391 (1986), we cannot disturb the commission's
decision to rely on Dr. Prince's opinion that Dancy was
unemployable. The commission's findings are supported by
credible evidence. See Pantry Pride, 18 Va. App. at 180-81, 442
S.E.2d at 702.
IV.
Finally, Georgia-Pacific contends that the commission erred
in refusing to reopen the record for consideration of a letter
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from Dr. Prince. We disagree.
The standard for reviewing petitions to
reopen the record to receive after-discovered
evidence is the same before the commission as
it is before a trial court. . . . The four
requirements which must be met before the
record will be reopened on the basis of
after-discovered evidence are that: (1) the
evidence was obtained after the hearing; (2)
it could not have been obtained prior to
[the] hearing through the exercise of
reasonable diligence; (3) it is not merely
cumulative, corroborative or collateral; and
(4) it is material and should produce an
opposite result before the commission.
Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452
S.E.2d 881, 883 (1995) (emphasis omitted) (citations omitted).
The document offered by Georgia-Pacific is a letter from Dr.
Prince, dated September 29, 1995, which was written in response
to a request from Dancy's counsel for an update of Dancy's
status. In the letter, Dr. Prince reiterated his opinion that
Dancy "suffers with total disability and is unable to engage in
any gainful employment as a result of his previous traumatic
injuries sustain[ed] in 1985." He also stated that a "permanent
total disability assessment should be performed by those engaged
in functional capacity evaluation." Georgia-Pacific argued that
Dr. Prince had thereby admitted that he was not trained to make
an evaluation of Dancy's employability.
In denying the request, the commission found, in pertinent
part, as follows:
It does not appear that this document
contains any significant new medical
information, only a summary of [Dancy's]
treatment and [Dr. Prince's] opinion
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regarding his condition when last seen. It
is essentially the same information that may
be obtained from the office notes of Dr.
Prince that were timely filed with the
Commission and are complete through September
26, 1995, only one week before the hearing.
[Georgia-Pacific's] bare statement that the
information in the September 29, 1995 report
is not cumulative, corroborative, or
collateral is not supported by the record.
Moreover, the information contained
therein was clearly available to either party
before the hearing, and counsel has not
explained why [Georgia-Pacific] could not
have obtained it through due diligence.
There is no evidence and [Georgia-Pacific]
does not argue that it attempted to
independently obtain this information, but
appears to argue that its own lack of effort
should be excused because [Dancy] did not
diligently seek a prompt response to his
request for information. We find no merit to
that argument. We also find no basis for
[Georgia-Pacific's] suggestion that the
report was intentionally delayed by conduct
of [Dancy's] counsel. Moreover, Dr. Prince's
stated opinion in the September 29, 1995
report is supportive and corroborative of
[Dancy's] theory of the case, making such a
suggestion illogical and unreasonable.
Upon consideration of the document and
arguments presented, we conclude that the
September 29, 1995 medical report is not of
such character as would produce a different
result on the merits; is merely cumulative,
corroborative, and collateral; and is
evidence that could have been obtained and
presented before the hearing by the exercise
of due diligence of either party.
The record supports all of those findings. We therefore
conclude that the commission did not abuse its discretion in
denying the request. See Old Dominion Elec. Coop. v. Virginia
Elec. and Power Co., 237 Va. 385, 394-98, 377 S.E.2d 422, 427-29
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(1989).
For these reasons, we affirm the commission's award.
Affirmed.
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