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. 
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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.