Present: All the Justices 

GEORGIA-PACIFIC CORPORATION 

OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 970867 February 27, 1998 

CLAUDE F. DANCY 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Code § 65.2-503 of the Virginia Workers’ Compensation Act 

generally deals with compensation for permanent loss. It 

provides that compensation shall be awarded pursuant to Code 

§ 65.2-500 for permanent and total incapacity when there is: 

“Loss of both hands, both arms, both feet, both legs, both eyes, 

or any two thereof in the same accident. . . .” § 65.2-

503(C)(1). The statute further provides that: “In construing 

this section, the permanent loss of the use of a member shall be 

equivalent to the loss of such member . . . .” § 65.2-503(D). 

Code § 65.2-500 measures the compensation for total disability. 

 The issue we decide is whether the Court of Appeals erred 

in affirming a ruling of the Workers’ Compensation Commission. 

The Commission determined the claimant was entitled to 

compensation for permanent and total incapacity when the 

evidence showed that the claimant suffers a permanent injury to 

both legs and that “the combination of the two leg injuries 

renders him unemployable.” We hold the Court of Appeals did not 

err and will affirm. 
 Appellee Claude F. Dancy, the claimant, sustained serious, 

compensable injuries in an industrial accident on May 20, 1985 

in Jarratt on the premises of his employer, appellant GeorgiaPacific Corporation. The claimant, age 38 at the time, was 

crushed under falling lumber. He sustained extensive fractures 

of both legs, injuries to both knees, and damage to his left 

hip, foot, and ankle. Subsequently, the self-insured employer 

paid the claimant under several awards entered by the Commission 

for temporary total and permanent partial disability. See 

Georgia Pacific Corp. v. Dancy, 17 Va. App. 128, 435 S.E.2d 898 

(1993), in which the Court of Appeals affirmed the Commission’s 

award of temporary total disability benefits based on claimant’s 

June 1991 application. 

 In July 1994, the claimant filed an application with the 

Commission alleging a change of condition and sought an award 

for permanent total disability under Code § 65.2-503(C). At the 

subsequent hearing on the application before a deputy 

commissioner, the evidence showed that claimant “continued to 

suffer” from a 100% disability to his left leg and a 15% 

disability to his right leg as a result of the industrial 

accident. The deputy concluded from the evidence that the 

claimant “cannot use his legs in gainful employment.” Based on 

these findings, the deputy entered an award for compensation for 

permanent total disability from December 19, 1994 at the rate of 

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$295.00 per week with medical benefits to “continue for as long 

as necessary.” 

 Upon review, the full Commission affirmed the deputy. 

Interpreting Code § 65.2-503(C)(1), the Commission found “that 

the claimant suffers a permanent injury to his right leg, albeit 

less serious than the left, and that the combination of the two 

leg injuries renders him unemployable.” The Commission said 

“the claimant has no marketable capacity for employment that 

would require use of his legs, i.e., that he cannot use his legs 

in gainful employment.” 

 Upon appeal, a panel of the Court of Appeals unanimously 

affirmed the Commission’s award. Georgia-Pacific Corp. v. 

Dancy, 24 Va. App. 430, 482 S.E.2d 867 (1997). The Court of 

Appeals, answering the employer’s argument, said the Commission 

“was not required to make separate findings that each leg is 

unusable in employment.” Rather, the Court of Appeals stated, 

“the proper inquiry was whether the rated loss of use in Dancy’s 

legs rendered both of Dancy’s legs effectively unusable.” Id.

at 437, 482 S.E.2d at 871. Thus, the Court of Appeals held that 

the Commission correctly based “its ruling of permanent and 

total incapacity on the combined effect of the injuries to both 

of Dancy’s legs.” Id.

 Determining that the Court of Appeals’ decision involves a 

matter of significant precedential value within the meaning of 

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Code § 17-116.07(B), we awarded the employer this appeal from 

the March 1997 judgment below. 

 On appeal to this Court, the employer contends that Code 

§ 65.2-503(C) requires the claimant to establish that each of 

his legs is unusable in employment to qualify him for permanent 

and total disability benefits. In other words, the employer 

contends, the Commission and the Court of Appeals wrongly 

evaluated Dancy’s claim by using a “combined effect” test, 

which, according to the employer, “ignores the potential that 

one minimally injured limb could still be used in gainful 

employment but for the total disability which the other limb 

causes.” 

 The employer points out the claimant was hospitalized in 

June 1995 for “multiple health problems.” It notes the July 

hospital discharge summary described a number of conditions, 

including cellulitis of the left ankle, ulcerations of the left 

foot and ankle, severe vascular disease, chronic pulmonary 

disease, heart disease, hypertension, old leg fractures with 

soft tissue injury and residual disability, arthritis, and 

tobacco abuse. The employer contends there is “an absence of 

any evidence that the 15% disability to Dancy’s right leg 

renders him unemployable, or unable to use the right leg in 

gainful employment.” Therefore, the employer argues, the Court 

of Appeals erred in affirming the Commission’s award “of 

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lifetime benefits for the total loss of use of two members.” We 

disagree. 

 The rulings of the Court of Appeals and the Commission 

correctly applied our decisions interpreting the ancestors of 

Code § 65.2-503(C)(1) and (D), that is, former §§ 65.1-56(18) 

and 65-53(18), both containing language identical to the present 

statute. 

Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 80 

S.E.2d 537 (1954), interpreted former § 65-53(18). There, the 

most severe injuries suffered by the claimant in an industrial 

accident were comminuted fractures of the upper third of the 

femur in each leg. The medical evidence showed the claimant had 

a 25% permanent disability to his left leg and a 30% permanent 

disability to his right leg. 

 In affirming the Commission’s award for total and permanent 

incapacity, this Court observed: “It is conceded that claimant 

in the same accident sustained severe injuries to both legs. 

The legs were not lost in the sense that they were severed from 

the body, but for the total loss of use of both legs claimant is 

entitled to the same compensation as if they had been severed.” 

Id. at 856, 80 S.E.2d at 541. The Court noted: “The same 

doctors, who stated that claimant had lost only a small 

percentage of use of his legs, stated that he was not able to 

hold a job and earn a living but ‘he is probably able to do odd 

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jobs around the house.’” Id. at 857, 80 S.E.2d at 541. The 

Court said: “The 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.

 Further, the Court stated: “The question of law presented 

is whether, in determining the extent of the loss of use of two 

members injured in the same accident, the ability of the injured 

employee to engage in gainful employment is a proper element for 

consideration.” Id. Answering the question in the affirmative, 

the Court held: “If two members are injured in the same 

accident and it is proven that there is total and permanent loss 

or loss of use of both members resulting therefrom,” the 

claimant is entitled to compensation for total and permanent 

incapacity. Id. at 860, 80 S.E.2d at 542-43. 

Borden, Inc. v. Norman, 218 Va. 581, 239 S.E.2d 89 (1977), 

interpreted former § 65.1-56(18). There, the injuries suffered 

by the claimant in an industrial accident included a comminuted 

fracture of the right tibia, severe laceration of the left leg, 

and slough of wounds of both legs requiring skin grafting. The 

record showed the claimant had a “15% permanent loss of function 

of the left leg and a 50% permanent physical impairment of the 

right leg.” Id. at 584, 239 S.E.2d at 91. A physician, who saw 

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the claimant once two years after the accident, concluded that 

claimant was “unfit for any occupation other than a ‘sedentary 

type one.’” Id. at 588, 239 S.E.2d at 93. The Commission ruled 

the claimant “suffered a permanent loss of the use of both legs 

of such extent as to render him unable to market his remaining 

capacity for work,” id. at 582, 239 S.E.2d at 90, and awarded 

compensation for total and permanent incapacity. 

 Reversing the Commission, the Court said: “The issue 

involved here can be tersely stated. Is [the claimant’s] loss 

of use of both legs less than total? If so, he is not entitled 

to recover under Code § 65.1-56(18).” Id. at 584, 239 S.E.2d at 

91. The Court stated: “No case has been brought to our 

attention where an award was made under § 65.1-56(18), and in 

which a court held that a 10% to 15% impairment of one leg, and 

a 30% to 50% impairment of the other, constituted a total loss 

of the use of both legs. And the medical evidence does not 

support such a finding here.” Id. at 587, 239 S.E.2d at 93. 

The Court said that both the claimant’s attending physician and 

his plastic surgeon were of opinion that claimant’s “leg 

injuries were not total and that he was able to follow some form 

of gainful employment.” Id. at 588, 239 S.E.2d at 93. 

Therefore, the Court held the claimant had not “suffered a loss 

of both legs, or a loss of the use of both legs, within the 

meaning of Code § 65.1-56(18).” Id.

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 Factually, the present case is like Chrisley (claimant 

unable to use legs to any substantial degree in any gainful 

employment), and unlike Borden (claimant able to follow some 

form of gainful employment). Neither decision, nor Code § 65.2-

503(C) (which specifies loss of “both legs,” not “each leg”), 

supports the employer’s contentions (1) that the claimant must 

establish each leg is unusable in employment or (2) that the 

Commission violates the statute when it considers the combined 

effect of the disability ratings to both legs when determining 

entitlement to benefits for total and permanent incapacity. 

 Accordingly, we hold that the Court of Appeals correctly 

affirmed the Commission’s decision, based on credible evidence, 

that the combination of the claimant’s right and left leg 

disabilities, coupled with his inability to work, rendered him 

permanently and totally disabled. 

 Therefore, the judgment from which this appeal is taken 

will be 

Affirmed. 

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