Annie E. Anderson v. Union Camp Corporation ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ANNIE E. ANDERSON
MEMORANDUM OPINION*
v. Record No. 2402-99-4 PER CURIAM
FEBRUARY 15, 2000
UNION CAMP CORPORATION AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Craig A. Brown; Ashcraft & Gerel, LLP, on
brief), for appellant.
(Robert A. Rapaport; Richard E. Garriott, Jr.;
Clarke, Dolph, Rapaport, Hardy & Hull,
P.L.C., on brief), for appellees.
Annie E. Anderson (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that she
failed to prove she was entitled to an award of permanent total
disability benefits pursuant to Code § 65.2-503(C)(1). 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. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
sustained her burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Code § 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), we
recognized that Cafaro's rating requirement extends to cases
involving permanent total loss of use as well as those involving
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permanent partial loss of use. See id. at 654-55, 447 S.E.2d at
238.
In denying claimant's application, the commission found as
follows:
[W]e cannot find that any disability rating
has ever been made for the claimant's hands
to quantify or rate the extent of functional
loss. Significantly, the Chief Deputy
Commissioner "acknowledge[d] Dr.
[Douglas A.] Wayne's electrodiagnostic
studies which establish that the claimant is
able to move her hands and fingers." Also,
the Chief Deputy Commissioner was "convinced
that Anderson's psychological condition
precludes her from engaging in gainful
employment, even though physiologically she
may be capable of moving her hands."
However, the claimant cannot be awarded
permanent total disability benefits under
Va. Code Ann. § 65.2-503(C) for a
psychological condition, except for an
"[i]njury to the brain which is so severe as
to render the employee permanently
unemployable in gainful employment." Va.
Code Ann. § 65.2-503(C)(3). The evidence
presented at the hearing therefore
establishes that the claimant is capable of
moving her hands, such that [she] does not
suffer total and absolute loss of function
of those members. Accordingly, . . . we
find . . . that the claimant has failed to
prove her entitlement to permanent total
disability benefits under the Act.
The commission's findings are amply supported by the
record. Because 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 § 65.2-503(C), we
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cannot find as a matter of law that the evidence was sufficient
to sustain her burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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