COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
JAMES HENRY LESCALLETT
OPINION BY
v. Record No. 0675-96-4 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 12, 1996
ROZANSKY & KAY CONSTRUCTION COMPANY
and
UNITED STATES FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kenneth D. Bynum (Koonz, McKenney, Johnson &
DePaolis, P.C., on brief), for appellant.
S. Vernon Priddy, III (Mary Louise Kramer;
Sarah Y. M. Kirby; Sands, Anderson, Marks &
Miller, on brief), for appellees.
On appeal from a decision of the Virginia Workers'
Compensation Commission denying him permanent and total
disability benefits for loss of use of both of his legs pursuant
to Code § 65.2-503(C), James H. LesCallett contends that the
commission erred in ruling that "a claimant must show 'that the
loss of use [of the legs] is quantifi[able] since a specific
incapacity rating is required before permanent partial or total
disability benefits may be awarded.'"
Rozansky & Kay Construction Company (Rozansky) contends on
appeal that the commission erred in finding (1) that LesCallett
had reached maximum medical improvement, (2) that the medical
evidence supports a finding that LesCallett is totally and
permanently disabled, and (3) that a vocational expert was not
required on the issue of LesCallett's ability to be gainfully
employed. We affirm the decision of the commission.
On July 10, 1985, LesCallett was injured at work while
removing a large cornerstone from the bed of a delivery truck.
Since that time, he has been unemployed and has undergone back
surgery eight times. He cannot walk over one hundred feet
without pain and cannot stoop, bend, or climb stairs. This
disability results directly from his work-related injury.
LesCallett has received 500 weeks of temporary total disability
benefits pursuant to Code § 65.2-500.
In support of his application for benefits for permanent and
total loss of use of his legs, pursuant to Code § 65.2-503(C),
LesCallett presented letters from his treating physicians stating
that his physical condition was permanent and that it rendered
him totally and permanently disabled and unable to perform
gainful employment. Denying him compensation under Code
§ 65.2-503, the deputy commissioner and the full commission, on
review, held that although LesCallett was permanently and totally
disabled from any gainful employment, he had failed to prove a
quantified loss of use of his legs, as required in Cafaro
Construction Co. v. Strother, 15 Va. App. 656, 657-58, 426 S.E.2d
489, 490 (1993).
Code § 65.2-503 states in pertinent part:
C. Compensation shall be awarded pursuant
to § 65.2-500 for permanent and total
incapacity when there is:
1. Loss of . . . both legs . . . in
the same accident;
* * * * * * *
- 2 -
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.
"'[A]n award under Code [§ 65.2-503] is not dependent upon a
claimant's incapacity for work. That section is intended to
provide benefits in the nature of indemnity for the loss of a
scheduled body member.'" Cafaro, 15 Va. App. at 662, 426 S.E.2d
at 493 (citation omitted). "In order to establish entitlement to
[] compensation under Code § 65.2-503, the claimant [is] required
to present evidence rating the functional loss of use of his
legs." Id. Proof of the functional loss of the member, not
industrial incapacity, is required for an award of benefits under
Code § 65.2-503.
Dr. Lavin stated in his September 14, 1995 letter that "Mr.
Les Callett's [sic] physical condition has rendered him totally
and permanently disabled" and that he "doubt[ed] that
[LesCallett] could use both of his lower extremities to any
substantial degree for gainful employment." Dr. Mathews stated
in a letter to LesCallett's attorney that he believed LesCallett
had chronic intractable low back and leg pain and was totally and
permanently disabled. He further stated that LesCallett's whole
body impairment was 100% and that of that percentage his legs
constituted a "significant proportion." Dr. Mathews did not
separately calculate or otherwise address the degree of
- 3 -
impairment of LesCallett's legs because "it is secondary to
lumbar nerve dysfunction."
LesCallett testified that he could walk with the assistance
of a cane no further than fifty to one hundred feet without pain,
that he could not stoop, bend, or climb stairs, that his wife
puts his socks and shoes on him, and that his legs are like
"rubber bands" that just give way on him. His testimony was
uncontroverted.
This case is controlled by Cafaro. Although LesCallett
produced evidence that he was industrially disabled and that the
disability in his legs was a substantially contributing factor to
that disability, he failed to quantify a functional loss of the
legs that could be translated into loss of those members pursuant
to Code § 65.2-503(C).
The issues raised by Rozansky address findings of fact that
are supported by evidence. Under familiar principles, these
findings cannot be disturbed on appeal.
The decision of the commission is affirmed.
Affirmed.
- 4 -