COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

PATRICIA McDANIEL WISE 

 MEMORANDUM OPINION*

v. Record No. 1433-99-2 PER CURIAM 

 OCTOBER 19, 1999 

BONFELD, INC. AND 

 OLD REPUBLIC INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Patricia McDaniel Wise, pro se, on brief). 

 (Anne M. Dobson; R. Ferrell Newman; Thompson, 

Smithers, Newman, Wade & Childress, on 

brief), for appellees. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

 Patricia McDaniel Wise contends that the Workers' 

Compensation Commission erred in finding that she failed to 

prove she was entitled to an award of permanent total disability 

benefits. 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 the evidence sustained 
Wise's 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). 

 As pertinent to this appeal, Code § 65.2-503(C)(1) 

and(C)(2) provide 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 . . . [or an] [i]njury for all practical purposes 

resulting in total paralysis . . . ." 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, Wise 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, she 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 denying Wise's application, the commission found as 

follows: 

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[C]laimant continues to experience pain in 

the left shoulder, left side, neck and upper 

back, none of which are scheduled members 

under the relevant Code Section. On Review, 

the claimant asserts that the permanency 

rating assigned by Dr. [Lee] Voulters in 

June 1991 is sufficient to carry her burden. 

We do not agree. It is clear that Dr. 

Voulters concluded that the claimant has 

reached maximum medical improvement and 

suffers from a 10% permanent partial 

disability. However, we cannot determine 

whether this is a whole body impairment 

rating, a rating to a specific scheduled 

member, or the criteria he utilized in 

rendering this opinion. Further, we cannot 

determine whether this rating is assigned to 

one member as opposed to two or more. We 

also note the Attending Physician's Report 

completed by Dr. Voulters in February 1991 

in which he assigned a 20% permanency 

rating. This report is unsupported by any 

medical reports and suffers from the same 

defects as the report of June 1991. 

 With the exception of Dr. Voulters, 

only Dr. [Jonathan R.] Amy rendered an 

opinion on the issue of permanency. He 

reported an essentially normal examination 

as to the functionality of the upper and 

lower extremities based on objective 

criteria. Dr. Amy noted complaints of pain 

while performing certain tasks which appear 

to affect only one extremity. More 

importantly, he could not state with a 

reasonable degree of medical certainty what 

percentage of permanent disability the 

claimant suffers from based on the AMA 

Guidelines. Neither he nor any other 

physician rendered an opinion on the 

percentage of permanent disability to any 

scheduled member, singly or in tandem. 

 The commission's findings are amply supported by the 

record. Because Wise failed to present evidence of a specific 

rating of the functional loss of use of two scheduled members as 

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required for an award under Code § 65.2-503(C), we 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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