Eastern Air., etc. v. Vincent Raymond Janes ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Bray and Annunziata
EASTERN AIRLINES, INC.
AND
TRAVELERS INDEMNITY COMPANY
MEMORANDUM OPINION *
v. Record No. 0293-95-4 PER CURIAM
JULY 18, 1995
VINCENT RAYMOND JANES, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Elizabeth A. Zwibel; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellants.
(Michael W. Heaviside; Ashcraft & Gerel, on brief),
for appellee.
Eastern Airlines, Inc. and its insurer contend that the
Workers' Compensation Commission erred in finding that Vincent
Raymond Janes, Jr. was entitled to an award of permanent and
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. Rule 5A:27.
Janes, an airline pilot, injured his back on August 2, 1984
while lifting a flight bag. Shortly thereafter, he underwent
surgery for a herniated disc. The employer accepted Janes' back
injury and resulting left lower extremity weakness as
compensable. Pursuant to a memorandum of agreement and award,
the employer paid 500 weeks of temporary total disability
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
benefits to Janes. These benefits ended on March 14, 1994. On
April 4, 1994, Janes filed an application seeking permanent total
disability benefits for the loss of use of both of his legs. His
application was based upon impairment ratings rendered by his
treating neurosurgeon, Dr. Michael W. Dennis, in August 1993 and
March 1994.
Janes testified that his condition had worsened since the
1984 accident and that he suffers from pain in both legs. He
stated that he had not worked since the accident, and that he did
not believe he could work. He is able to perform some household
chores and can drive short distances. He is able to stand for
thirty-five to forty minutes and to sit for thirty to forty-five
minutes. He can walk for short periods of time. However, he
takes narcotic medications on a daily basis to control his pain.
He must also use a brace and orthopedic shoes.
Beginning in April 1986, Dr. Dennis consistently opined that
Janes was totally disabled from all forms of employment. On
August 17, 1993, Dr. Dennis opined that Janes had reached maximum
medical improvement. Dr. Dennis rated Janes' left leg impairment
at seventy-five percent. On March 11, 1994, Dr. Dennis noted
that Janes remained symptomatic. Dr. Dennis rated Janes' right
leg impairment at twenty percent. Dr. Dennis based this opinion
on Janes' "professed weakness and pain" in the right leg.
Moreover, there are several references in Dr. Dennis' notes to
Janes' right leg pain and collapse of his right leg due to
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weakness associated with his back complaints.
On June 13, 1994, Dr. Niren N. Bhaduri, a general surgeon,
opined that Janes' right leg was thirty percent disabled and his
left leg was seventy-five percent disabled.
Dr. Leonard G. Perlman, who provided psychological
consultation on July 29, 1994, concluded that Janes was not
"employable at the competitive or even sheltered level." Dr.
Perlman stated that Janes' difficulties with walking and the
"unsteadiness in both of his legs would hinder his ability to get
a job and sustain even the usual and customary movement in a work
setting." Dr. Perlman also cited Janes' chronic, intractable low
back and leg pains, and his difficulties walking with pain and
standing or sitting for reasonable periods, as factors which
weighed against his employability.
Code § 65.2-503(C)(1) provides for an award of compensation
under Code § 65.2-500 for permanent and total incapacity when
there is loss of use of both legs in the same accident. A
ratable loss of use of both legs of less than 100 percent,
coupled with evidence of incapacity for employment, is sufficient
to establish that an employee is permanently unemployable.
Pantry Pride v. Backus, 18 Va. App. 176, 180, 442 S.E.2d 699, 702
(1994).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
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Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Janes' testimony, and the uncontroverted notes and reports of
Drs. Dennis, Bhaduri, and Perlman, provide sufficient credible
evidence to support the commission's findings that Janes
sustained a ratable impairment to both of his legs resulting in
his inability to engage in gainful employment. Therefore, the
commission did not err in awarding permanent total disability
benefits to Janes.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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