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                    PERMANENT TOTAL BENEFITS

Sec 65.2-503 (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;

2. Injury for all practical purposes resulting in total paralysis, as determined by the Commission based on medical evidence; or

3. Injury to the brain which is so severe as to render the employee permanently unemployable in gainful employment.

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. Compensation shall also be awarded proportionately for partial loss of vision or hearing.

E. Except as provided in subsection C, the weekly compensation payments referred to in this section shall be subject to the same limitations as to maximum and minimum as set out in §65.2-500.

1. Compensation awarded pursuant to this section shall be payable after payments for temporary total incapacity pursuant to §65.2-500.

2. Compensation pursuant to this section may be paid simultaneously with payments for partial incapacity pursuant to §65.2-502. Where compensation pursuant to this section is paid simultaneously with payments for partial incapacity pursuant to §65.2-502, each combined payment shall count as two weeks against the total maximum allowable period of 500 weeks.

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The principle is well established that "[w]here, as here, an employee suffers the loss of use of a scheduled body member, the compensation provided by [Code Sec. 65.2-503] is not awardable 'until the injury has reached a state of permanency, i.e. maximum improvement, when the degree of loss may be medically ascertained.'" County of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977) (citation omitted). Thus, before the commission may award benefits pursuant to the schedule in Code Sec. 65.2-503 for the loss of use of a body member, "it must appear both that the . . . [loss or loss of use] is permanent and that the injury has reached maximum medical improvement." Id. The commission has consistently ruled that an employee has reached maximum medical improvement if no reasonable expectation exists that the employee will obtain further functional improvement from medical treatment, even though the injury remains symptomatic and disabling. See e.g. Billings v. King Electric, Inc., VWC File No. 157-39-38, n.1 (October 24, 1995). See also 4 Larson, Workers' Compensation Law, Sec. 57.12(b) and (c) (1998). Gunst Corporation v. Alice Lee Childress, Record No. 1530-98-2 (May 18, 1999). WP Version.

Claimant failed to prove an element necessary to establish compensability for a permanent total disability, where his medical evidence did not provide disability ratings for each of claimant's legs. Cafaro Constr. Co. v. Strother, 15 Va. App. 656, 426 S.E.2d 489 (1993). See id. at 662, 426 S.E.2d at 493. 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).

In a permanent total case, claimant was not required to show that his legs were immovable or could not be used in walking around the house, rather he was required to prove that he was unable to use his legs in any substantial degree in any gainful employment. See Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 857, 80 S.E.2d 537, 541 (1954).

In 1993 claimant was awarded benefits under Code Sec. 65.2-503(B) for loss of use of her legs. She was not seeking another award in 1996 for a scheduled loss under Code Sec. 65.2-503(B). In 1992, Dr. Worland had opined that claimant would not further improve in her ability to use her left and right legs. The commission's award was a tacit finding and acknowledgement of Gunst's agreement that claimant had reached maximum medical improvement. See Code Sec. 65.2-706 ("The award of the Commission . . . shall be conclusive and binding as to all questions of fact."); see also County of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977)(holding that the benefit "provided by [Code Sec. 65.2-503] is not awardable 'until the injury has reached a state of permanency, i.e. maximum improvement'"). Dr. Mathews opined that claimant's back condition, which resulted from her leg injury, would not improve and was a chronic condition that could not be resolved surgically. The commission found to be credible Dr. Worland's report that claimant would not have further functional improvements to her legs. The commission also accepted as credible Dr. Worland's and Childress' testimony that pain limited Childress' ability to walk. Thus, the evidence supports the commission's finding that Childress' disability in her legs is not based solely on pain. Gunst Corporation v. Alice Lee Childress, Record No. 1530-98-2 (May 18, 1999). WP Version.

As the Virginia Supreme Court reiterated in Georgia-Pacific Corp. v. Darcy, 255 Va. 248, 497 S.E.2d 133 (1998) WP Version, "'[t]he 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. at 252, 497 S.E.2d at 135 (quoting Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 857, 80 S.E.2d 537, 541 (1954)). Evidence from claimant, Dr. Worland, and Dr. Mathews, which the commission found to be credible, established that claimant was permanently and totally incapacitated from all gainful employment. Dr. Mathews opined that claimant is "100% disabled from any working occupation . . . now and permanently for the future." Dr. Worland extensively testified by deposition in 1997 concerning claimant's limitations and opined that claimant "is not fit for gainful employment" and would not be so in the future. This evidence supports the commission's finding that claimant's injury by accident "has rendered her unable to use her legs to any substantial degree in any gainful employment." Gunst Corporation v. Alice Lee Childress, Record No. 1530-98-2 (May 18, 1999). WP Version.

An employee's statutory dependents are entitled to claim the employee's scheduled permanent partial loss benefits under Code Sec. 65.2-503 (B) for loss of both arms and legs, when the deceased employee was still under an award for temporary total incapacity and had claimed neither permanent total nor permanent partial incapacity before his death from unrelated causes. Although eligible for permanent total incapacity benefits under Code Sec. 65.2-503 (C) for the loss of both arms and both legs, the employee never claimed those benefits and was under the temporary total incapacity award at the time of his death. Code Sec. 65.2-511 provides as follows: When an employee received or is entitled to compensation under this title for an injury covered by Sec. 65.2-503 and dies from a cause other than the injury for which he was entitled to compensation, payment of the unpaid balance of compensation shall be made to his statutory dependents under this chapter, in lieu of the compensation the employee would have been entitled to had he lived. Code Sec. 65.2-511.  Code Sec. 65.2-511 includes claims under Code Sec. 65.2-503 for "scheduled" benefits to which a claimant "is entitled" prior to death even though benefits had not been actually awarded under Code Sec. 65.2-503. See, e.g., Jarvis v. Gale, 20 O.I.C. 310, 312 (1938) (holding that dependents could claim employee's scheduled benefits for partial disability even though employee had made no efforts to claim them before he died). Although the employee, as a quadriplegic, could have qualified for permanent and total incapacity benefits under Code Sec. 65.2-503 (C), he also could have qualified for and would have been "entitled" to scheduled benefits under Code Sec.65.2-503(B). Because the employee would have been "entitled" to an award of scheduled benefits at the time of his death, his statutory dependents were entitled under Code Sec. 65.2-511 to the balance of benefits to which Flood would have been entitled under Code Sec. 65.2-503 (B). Thomas Refuse Service v. Kendell M. Flood, Record No. 1655-98-2 (June 8, 1999). WP Version.

The commission did not err in awarding permanent total benefits. After claimant received 500 weeks of temporary total benefits for injuries to his brain and shoulder. There was medical evidence in the record that documented the permanent injury to claimant's brain, his cognitive deficits such as impaired ability in memory function, concentration, reading, and learning, and his IQ level of 58. There was evidence that claimant cannot remember his social security number, his telephone number, or his date of birth. Claimant is unable to remember where his relatives live and needs written directions to drive to unfamiliar areas. He must be reminded by his girlfriend to bathe, brush his teeth, comb his hair, and change his clothing. Claimant suffers from low back pain and painful headaches that affect his vision in his right eye. The commission chose to reject Dr. Kreutzer's later opinion that claimant could sustain competitive employment and Dr. Cifu's conclusion that claimant could return to his preinjury employment. Instead, the commission relied on Dr. Kreutzer's initial evaluation of claimant, Mr. Proffitt's conclusions that claimant is unemployable, and the testimony regarding claimant's ability to function in a nonvocational environment. Earl R. Toombs, VA Forestry v. Raymond Smith, Record No. 0109-99-2 (November 9, 1999). WP Version.

The Workers' Compensation Commission (commission) did not err in finding that claimant failed to prove she was entitled to an award of permanent total disability benefits pursuant to Code Sec. 65.2-503(C)(1). Code Sec. 65.2-503(C)(1) provides compensation for permanent and total incapacity when there is "[l]oss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident . . . ." Subsection (D) provides that "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." To meet her burden of proof under this section, claimant was required to prove that she is unable to use her permanently impaired members in gainful employment. See Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 857, 80 S.E.2d 537, 541 (1954). In addition, claimant was required to "establish that [she] has reached maximum medical improvement and . . . [her] functional loss of capacity [must] be quantified or rated." Cafaro Constr. Co. v. Strother, 15 Va. App. 656, 661, 426 S.E.2d 489, 492 (1993). In Hill v. Woodford B. Davis General Contractor, 18 Va. App. 652, 447 S.E.2d 237 (1994), the court recognized that Cafaro's rating requirement extends to cases involving permanent total loss of use as well as those involving permanent partial loss of use. See id. at 654-55, 447 S.E.2d at 238. Claimant failed to present evidence of a specific rating of the functional loss of use of two scheduled members as required for an award under Code Sec. 65.2-503(C). Annie E. Anderson v. Union Camp Corporation, Record No. 2402-99-4 (February 15, 2000). WP Version.

    The Workers' Compensation Commission did not err in awarding benefits to claimant, pursuant to Code Sec. 65.1-56(18), the statute in effect on December 30, 1988, the time of the accident, upon finding he is permanently unemployable in gainful employment. 
    Claimant was injured while working as a maintenance mechanic. Claimant suffered closed brain injury, right frontal intracerebral hematoma, a basilar skull fracture with multiple air/fluid levels, a contusion to the right side of the face, multiple fractures to the face and right orbit, chest and neck trauma, aspiration pneumonities and pulmonary contusion, and pneumonia. The claim was accepted as compensable, resulting in a total of five hundred weeks of compensation benefits pursuant to various awards.
    After several years of medical treatment, the employer offered Wood a part-time position as a work order processor, which required him to process work orders using a computer software package by entering information into the computer database from card files. The position had previously been filled by college students on a part-time basis, but had been eliminated in August 1992. The job was revived and modified for Wood. The job was obtained for Wood by a vocational rehabilitation specialist and was approved by his treating physician and treating psychologist. Wood performed fewer than one-half the job tasks required of the last employee in the position. Wood testified that he obtained this position because "this was the only thing they could find that I might be capable of doing." 
    He earns $8.59 per hour and certain fringe benefits, including holiday pay, vacation pay, health insurance and a retirement plan. Although the job was approved for sixteen hours per week, Wood was only scheduled to work twelve hours per week and, in fact, worked even fewer hours than assigned because of the fatigue and severe headaches he suffered. Furthermore, he often cannot perform his assigned tasks. In his stead, his supervisor performs those tasks when those tasks are important. Wood performs them when he is able. 
    Marsha Hoexter, an expert in vocational rehabilitation, basing her conclusions on the medical, psychological and rehabilitation reports, testified that "there are not any jobs out in the competitive labor market that [Wood] would be considered for." She concluded that employers in the competitive market would not be as accommodating as the employer such that Wood could maintain a position elsewhere. 
    Richard J. Milan, Jr., Ph.D., concluded that the objective and psychometric evidence and collateral reports converge to strongly indicate that this gentleman is effectively disabled by the residual effects of his work related traumatic brain injury. He requires special accommodations to work even part-time and is unable to sustain anything approaching full-time employment in a competitive work environment.
    Code Sec. 65.1-56(18) of the Workers' Compensation Act provided, inter alia, that: [A]n injury to the brain which is so severe as to render the employee permanently unemployable in gainful employment, shall constitute total and permanent incapacity, to be compensated according to the provisions of Section 65.1-54. The commission found that because the employer revived and modified the position to meet Wood's needs and not out of business necessity, his employment did not constitute "gainful employment."  
    The issue of whether the commission erred in finding that Wood was "unemployable in gainful employment," implicates a core question of first impression in Virginia.  The commission's description of "gainful employment" is a conclusion of law that is not binding on this Court. Thomas Refuse Service v. Flood, 30 Va. App. 17, 20, 515 S.E.2d 315, 317 (1999). "However, the commission's construction of the Workers' Compensation Act is entitled to great weight on appeal." Id. (citing Wiggins v. Fairfax Park Ltd., 22 Va. App. 432, 441, 470 S.E.2d 591, 596 (1996)). We now adopt the commission's description of "gainful employment." 
    A definition of "gainful employment" in this context that does not consider the labor market and the motivations of a potential employer would swallow the rule such that any brain injury no matter how severe would be noncompensable if one employer were willing to hire an individual for non-business reasons, such as compassion.  Under such a definition, that person would be "employable in gainful employment" and ineligible for total disability benefits.  The limitation to "gainful" employment would be rendered meaningless. The definition adopted by the commission is supported by the decision of the Virginia Supreme Court in Atlantic Life Insurance Co. v. Worley, 161 Va. 951, 959, 172 S.E. 168, 171 (1934), in which the court addressed analogous issues. In its consideration of the phrase "total and permanent disability" in the context of insurance policy coverage, the Virginia Supreme Court rejected an interpretation of the phrase that disallowed benefits if the individual could engage in "any occupation whatsoever." Id.  The Supreme Court defined "total and permanent disability" as the inability to perform work for profit "in substantially the customary and usual manner in which such occupation is prosecuted." Id. at 960, 172 S.E. at 172.  The Supreme Court's definition, like the commission's definition, implies that the employer needs the employee as it would need any other employee to perform the tasks of the occupation. In short, the employment of a claimant has a business purpose.
    In adopting the commission's definition of "gainful employment," we are also persuaded by Professor Larson's so-called "odd-lot" doctrine. Professor Larson defines "odd-lot" workers as within the category of the totally disabled: [T]otal disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. The essence of the test is the probable dependability with which claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above crippling handicaps. Arthur Larson & Lex K. Larson, 4 Larson's Workers' Compensation Law, Sec. 83.01 (2001).  Most states considering the issue have incorporated Professor Larson's concept.
    In the instant case, claimant presented ample evidence from which the commission could reasonably conclude that the employer did not revive and modify the work order processor position for a business purpose. Claimant performed fewer than one-half the job tasks required of the last employee in the position. He testified that he obtained this position because "this was the only thing they could find that I might be capable of doing." Moreover, although the job was approved for sixteen hours per week, claimant was only scheduled to work twelve hours per week, and, in fact, worked even fewer hours than assigned due to fatigue and severe headaches. Finally, the evidence shows that claimant is often unable to perform his assigned tasks and that, when those tasks are important, either his supervisor performs them or claimant performs them at a time when he is able. 
    The commission also considered the testimony of Hoexter who, in part, testified that "there are not any jobs out in the competitive labor market that [claimant] would be considered for" and that employers in the competitive market would not be as accommodating as the employer such that claimant could maintain a position elsewhere.  We disagree with the employer's claim that the commission improperly relied on Hoexter's expert testimony.  The credibility of an expert witness and the weight to be accorded the evidence are matters within the province of the commission, the fact finder in the instant case. Georgia-Pacific Corp. v. Dancy, 24 Va. App. 430, 439, 482 S.E.2d 867, 871 (1997) (citing Horsley v. Commonwealth, 2 Va. App. 335, 339, 343 S.E.2d 389, 391 (1986)). However, an expert's opinion must be supported by facts within his or her knowledge or established by other evidence. Waynesboro Police v. Coffey, 35 Va. App. 264, 271, 544 S.E.2d 860, 863 (2001) (citing Gilbert v. Summers, 240 Va. 155, 160, 393 S.E.2d 213, 215 (1990)). 
    In the instant case, the expert relied on facts in evidence and facts gathered by her own investigation to reach her conclusion.  Hoexter indicated that she met with claimant and his wife, reviewed his medical records including a neuropsychological evaluation, and a report by Rehabilitative Services and Vocational Placement, Inc.  The commission, therefore, was entitled to consider and give due weight to Hoexter's testimony.  Because the evidence is sufficient to support the commission's finding that claimant was "unemployable in gainful employment," defined as requiring a business purpose, the commission's decision is affirmed. Great Northern Nekoosa Corp. v. Larry Wood, Record No. 0228-01-4 (October 23, 2001). WP Version.

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Virginia Birth-Related Neurological Injury Compensation Act

                                                                                            

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