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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.

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Virginia Birth-Related Neurological Injury Compensation Act

                                                                                            

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