COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JACK B. McCREADY
v. Record No. 1055-95-1 MEMORANDUM OPINION *
PER CURIAM
SCHULDERBERG & KURDLE COMPANY, INC. NOVEMBER 7, 1995
AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Karen M. Rye; Melody L. Cockrell, on
brief), for appellant.
(William C. Walker; Bradford C. Jacob;
Taylor & Walker, on brief), for appellees.
Jack B. McCready ("claimant") contends that the Workers'
Compensation Commission erred in denying his application seeking
permanent total disability benefits provided for in Code
§ 65.2-503(C) on the ground that he failed to produce evidence of
a disability rating for each leg. Upon reviewing the record and
the briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
Claimant suffered a compensable back injury on April 7,
1982. Pursuant to an award, claimant received 500 weeks of
temporary total disability benefits through November 7, 1991. On
November 5, 1993, claimant filed an application seeking an award
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of permanent total disability benefits beginning November 7,
1991.
On June 14, 1994, Dr. Sterling R. Williamson opined that due
to claimant's continuing discomfort, significant range of motion
loss, and residual straight leg raise abnormality, claimant had
sustained a 35% permanent partial disability related to
continuing obstruction and encroachment at L4-5 and L5-S1.
The commission denied claimant's application on the ground
that he failed to prove a permanent and disabling loss of
function to his legs that would entitle him to an award for
permanent total disability under Code § 65.2-503(C). In so
ruling, the commission correctly relied upon Cafaro Constr. Co.
v. Strother, 15 Va. App. 656, 426 S.E.2d 489 (1993). Claimant
failed to prove an element necessary to establish compensability
for a permanent total disability, to wit, Dr. Williamson did not
provide disability ratings for each of claimant's legs. See id.
at 662, 426 S.E.2d at 493. We have consistently noted in similar
cases that this Court is bound by its decision in Cafaro. See,
e.g., Hill v. Woodford B. Davis Gen. Contractor, 18 Va. App. 652,
447 S.E.2d 237 (1994); Pantry Pride Food Fair Stores, Inc. v.
Backus, 18 Va. App. 176, 442 S.E.2d 699 (1994). 1
Because the commission correctly applied the existing law
1
The commission also correctly noted that "[a] permanent
total disability resulting solely from back dysfunction is not
compensable under Code § 65.2-503(C), unless it results in
practical total paralysis, which is not shown by the evidence in
this case."
2
and because claimant's evidence failed to rate the functional
loss of use of his legs, we cannot find that the commission erred
in denying claimant's application. Accordingly, the commission's
decision is affirmed.
Affirmed.
3