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Lester v. Tri-Della Coal Mining Corp.

Court of Appeals of Virginia
Jun 28, 1994
445 S.E.2d 691 (Va. Ct. App. 1994)

Summary

In Lester v. Tri-Della Coal Mining Corp., 18 Va. App. 551, 445 S.E.2d 691 (1994), we held that the loss or loss of use of a lesser and greater member of the same limb did not constitute the loss of two members for purposes of determining permanent total disability pursuant to Code Sec. 65.2-503(C) (1).

Summary of this case from Pavtis v. Genuine Parts Co.

Opinion

49475 No. 1268-93-3

Decided June 28, 1994

(1) Workers' Compensation — Benefits — Loss of Use of a Member. — The loss of both hands, both arms, both feet, both legs or both eyes or any two thereof, in the same accident, is compensable as a permanent and total incapacity; the leg and foot on that leg do not constitute the loss of two members.

(2) Workers' Compensation — Benefits — Loss of Use of a Member. — The actual loss of a leg necessarily includes the actual loss of the attached foot.

(3) Workers' Compensation — Benefits — Loss of Use of a Member. — The loss of or loss of use of the arm includes the hand but the loss of or loss of use of the hand does not include the arm.

Lawrence L. Moise, III (Vinyard Moise, on brief), for appellant.

S. T. Mullins (Street, Street, Street, Scott, Bowman, on brief), for appellees.


SUMMARY

Employee appealed the decision of the Workers' Compensation Commission denying lifetime total benefits. He argued that the commission erred in finding that he had not lost use of two ratable members, his foot and leg.

The Court of Appeals affirmed, holding that an employee is not entitled to lifetime benefits under Code Sec. 65.2-503(C)(1) as a result of the permanent disability of a leg, including the foot.

Affirmed.


OPINION


Appealing from the Workers' Compensation Commission, the employee challenges the commission's decision denying him lifetime total benefits. In addressing his appeal, we hold that the loss of the right foot and the right leg is not the loss of two members constituting total and permanent incapacity under Code Sec. 65.2-503.

While working for the employer in 1983, the employee sustained a crush injury to his right leg and received temporary total benefits. In 1988, pursuant to a memorandum of agreement, he received permanent, partial benefits for a sixty percent loss of use of his right leg. Code Sec. 65.2-503(D). When these benefits expired in 1990, the parties entered a supplemental memorandum of agreement reinstating temporary total benefits. The employee then applied for lifetime benefits for permanent and total incapacity under Code Sec. 65.2-503(C) (1) (formerly Code Sec. 65.1-56(18)), claiming he had lost use of two ratable members, his right foot and right leg. The commission denied the application because the employee had not lost two members for the purposes of Code Sec. 65.2-503(C) (1) and had not reached maximum medical improvement.

The employee's treating physician found a sixty percent loss of function in the "right lower extremity." An orthopedic surgeon found that the employee had lost the use of both his right leg and right foot, to the extent that they cannot be used in gainful employment.

(1-2) "[The] loss of both hands, both arms, both feet, both legs, [or] both eyes or any two thereof, in the same accident" is compensable as a permanent and total incapacity. Code Sec. 65.2-503(C) (1). This section does not, as the employee contends, contemplate that the right leg and right foot are "any two thereof." The section deals on its face with actual loss, and the actual loss of a leg necessarily includes the actual loss of the attached foot. Thus, a logical reading of the phrase, "any two thereof," requires that the leg and attached foot are not two separately ratable members. This reading of the section is supported by common usage. By definition, a leg is "[a] limb or appendage of an animal, used for locomotion or support." American Heritage Dictionary 723 (2d college ed. 1982). A foot is "the lower extremity of the vertebrate leg," id. at 512, or "the terminal part of the leg." Black's Law Dictionary 772 (4th ed. 1957).

While functional loss of a leg may not necessarily include functional loss of the attached foot, Code Sec. 65.2-503(D) instructs that loss of use is to be treated as actual loss for purposes of this statute.

(3) Moreover, since at least 1955, the commission has rated either the hand or the arm in the analogous situations where injuries to the hand area rendered the arm industrially useless. See Washick v. Jack I. Bender Co., 37 O.I.C. 138 (1955); Bane v. Stone Webster Eng'g. Corp., 37 O.I.C. 89 (1955). More recently, the commission held that "[t]he loss of or loss of use of the arm includes the hand but the loss of or loss of use of the hand does not include the arm." Johnson v. Lynchburg Foundry, 51 O.I.C. 135, 136 (1969). We accord this interpretation great deference, presuming that the legislature is aware of and has adopted an interpretation of such long-standing. Graham v. Peoples Life Ins. Co., 7 Va. App. 61, 68-69, 372 S.E.2d 161, 165 (1988) (en banc).

Therefore, we hold that the employee is not eligible for lifetime benefits under Code Sec. 65.2-503(C) (1) as a result of the permanent disability of his right leg, including his right foot. Because this holding disposes of the employee's claim under this section, and because the employee has already received permanent partial benefits under Code Sec. 65.2-503(D) (formerly Code Sec. 65.1-56), we do not reach the question of maximum medical improvement.

Accordingly, the decision of the commission is affirmed.

Affirmed.

Coleman, J., and Koontz, J., concurred.


Summaries of

Lester v. Tri-Della Coal Mining Corp.

Court of Appeals of Virginia
Jun 28, 1994
445 S.E.2d 691 (Va. Ct. App. 1994)

In Lester v. Tri-Della Coal Mining Corp., 18 Va. App. 551, 445 S.E.2d 691 (1994), we held that the loss or loss of use of a lesser and greater member of the same limb did not constitute the loss of two members for purposes of determining permanent total disability pursuant to Code Sec. 65.2-503(C) (1).

Summary of this case from Pavtis v. Genuine Parts Co.
Case details for

Lester v. Tri-Della Coal Mining Corp.

Case Details

Full title:SCOTTY LESTER v. TRI-DELLA COAL MINING CORPORATION and OLD REPUBLIC…

Court:Court of Appeals of Virginia

Date published: Jun 28, 1994

Citations

445 S.E.2d 691 (Va. Ct. App. 1994)
445 S.E.2d 691

Citing Cases

Pavtis v. Genuine Parts Co.

We disagree. In Lester v. Tri-Della Coal Mining Corp., 18 Va. App. 551, 445 S.E.2d 691 (1994), we held that…