CORPORATION v. DANCY
February 27, 1998
Record No. 970867
CLAUDE F. DANCY
OPINION BY JUSTICE A. CHRISTIAN COMPTON
FROM THE COURT OF APPEALS OF VIRGINIA
Present: All the Justices
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
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 $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
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 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
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 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
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 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.
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