COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

GEORGIA-PACIFIC CORPORATION 

 OPINION BY 

v. Record No. 1805-96-2 JUDGE JAMES W. BENTON, JR. 

 MARCH 25, 1997 

CLAUDE FRANKLIN DANCY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Cecil H. Creasey, Jr. (Mark M. Caldwell, III; 

Sands, Anderson, Marks & Miller, on briefs), 

for appellant. 

 Brian J. Cusce for appellee. 

 Georgia-Pacific Corporation appeals from a ruling of the 

Workers' Compensation Commission granting Claude Franklin Dancy 

permanent total disability benefits. Georgia-Pacific contends 

that the commission erred (1) as a matter of law in awarding 

permanent total disability benefits, (2) in finding that Dancy 

suffered a permanent loss of use of his right leg, and (3) in 

refusing to allow after-discovered evidence. For the reasons 

that follow, we affirm the commission's ruling. 

 I. 

 Dancy suffered a compensable injury by accident on May 20, 

1985, when his legs were crushed by boards on a conveyor. As a 

result, the commission awarded Dancy temporary total disability 

benefits. Before the temporary total disability benefits 

terminated, Dancy filed a claim for permanent total disability 

benefits. 
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 At the evidentiary hearing, the evidence proved that when 

Dancy slipped onto a discharge conveyor, a load of boards hit 

him. Dancy's left foot was crushed, his left leg was broken in 

four places, his right leg was broken in several places, and his 

right knee was damaged. Dancy's left hip also was injured. 

 Two days after the accident, Dr. John Cardea, an orthopaedic 

surgeon, performed closed reduction surgery to repair fractures 

of Dancy's left and right tibias and his left femur. Dancy also 

was treated for crush injuries to both legs, his left ankle, and 

foot and for internal derangement of his left knee. Because 

Dancy continued to have pain, Dr. Cardea performed additional 

surgery. A year later, Dr. Cardea reported that Dancy still had 

problems with his right ankle and severe problems with his left 

leg, foot, and ankle. 

 In 1987, Dr. Cardea suggested that Dancy attempt to return 

to work. After Dancy worked for six hours, a physician sent him 

home. When Dancy returned, he worked for only two days because 

his left leg became swollen and he could no longer stand. 

Because Dr. Cardea was out of town at the time, Dancy saw a 

company doctor, who told Dancy he "had no business in that plant 

to start with." After Dr. Cardea saw Dancy, he opined, "I do not 

think that he is ever going to return to work under these 

circumstances." 

 Following Dancy's failed attempt at work, Dr. Cardea 

reported that Dancy also had problems with his right leg because 
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he began "put[ting] all his weight on the right leg and his ankle 

and leg hurt." In 1991, Dr. Hallett H. Mathews reported that 

Dancy "might have more degeneration in his right knee as he takes 

stress from his left knee." Dr. Cardea also reported that Dancy 

"has pain in his right knee which intermittently causes giving 

way of the knee. That pain sometimes goes down into his right 

ankle." 

 On September 11, 1994, Dr. Cardea completed a disability 

assessment form. He opined that Dancy had a one hundred percent 

disability to his left leg and a fifteen percent disability to 

his right leg. Dr. Cardea added that Dancy could not "stand for 

longer than [one hour], . . . sit for greater than [two hours] at 

a time, . . . climb, stoop, crawl, work on uneven ground, [or] 

work in extreme[] . . . [t]emperature[s]." On June 16, 1995, Dr. 

Cardea reported that Dancy could work, subject to the 

restrictions contained in his September 1994 report. 

 Dancy continued to see Dr. Cardea until a year before the 

hearing. Dancy testified that he had most recently been treated 

by Dr. Prince, his family physician, and Dr. Evans, a vascular 

surgeon. Dancy was hospitalized from June 24, 1995 until July 

15, 1995 for a variety of health problems, including "cellulitis 

of the left leg, with [two] ulcerations of the left lateral 

ankle." At that time, Dr. Prince stated that Dancy "has had a 

non-healing ulcer of his left ankle for some time that has failed 

to respond to conservative outpatient medical management." Dr. 
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Prince referred Dancy to Dr. Evans for "aggressive management of 

his left leg ulcerations." Dr. Evans reported that Dancy 

suffered from "arterial occlusion of [the] anterial tibial artery 

[caused by the] previous trauma," and a "[c]hronic venous 

insufficiency [caused by the] previous trauma." 

 Dr. Prince reported that Dancy "suffers with total 

disability and is unable to engage in any gainful employment as a 

result of his previous traumatic injuries sustain[ed] in 1985, 

his current physical condition, previous training and educational 

background." Dr. Evans opined that Dancy's medical problems were 

such that he could lose his left leg. 

 Dancy testified that he has steel pins in both legs, that 

his left leg and foot hurt all the time, and that his right leg 

and knee hurt all the time. In addition, he testified that his 

feet and legs still swell after he stands for a while and his hip 

bothers him when he walks a lot. He uses a cane to walk. 

 The record also proved that Dancy had a tenth grade 

education. Prior to his employment at Georgia-Pacific, Dancy had 

been employed in jobs involving physical labor. He had bagged 

groceries, pumped gas, and loaded trucks and ships for retailers. 

 When Dancy served in the U.S. Army, he drove trucks and hauled 

ammunition and water. 

 Terry Stacey, a rehabilitation counselor who had met with 

Dancy in 1992, testified that "recognizing his limited education, 

his time in the service[,] . . . where he lives, [and] his 
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medical condition, . . . there were some things, selective work, 

at least on a part time basis, that he could do for the rest of 

his life providing that there were no other complications." 

Stacey stated that Dancy could work at a nursery watering flowers 

for up to four hours per day, work at a senior citizens' home or 

a medical clinic as a driver, or work as a "customizer" at a car 

wash. Stacey testified, however, that he had not reviewed the 

medical reports in the record from Dr. Prince and Dr. Evans 

concerning Dancy's current condition. 

 Following the evidentiary hearing, the deputy commissioner 

found that Dancy suffered a one hundred percent impairment of his 

left leg and a fifteen percent impairment of his right leg. He 

also found that the evidence proved "Dancy cannot use his legs in 

gainful employment." Thus, the deputy commissioner found that 

Dancy was permanently and totally disabled and awarded Dancy 

benefits of $295 per week. 

 After the deputy commissioner issued his opinion, 

Georgia-Pacific requested that the commission reopen the record 

for additional evidence. Georgia-Pacific attached to its request 

a letter Dr. Prince had written to Dancy's attorney that was 

dated September 29, 1995, and argued that the letter undermined 

previous opinions offered by Dr. Prince. 

 On its review of the deputy commissioner's award, the 

commission denied Georgia-Pacific's request to reopen the record. 

 The commission also found as follows: 

 The record establishes, and 
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[Georgia-Pacific] does not dispute, that 

[Dancy] cannot use his left leg in gainful 

employment. He suffered femur and tibia 

fractures to this leg, as well as knee 

injuries, ankle and foot crush injuries, and 

also vascular diseases relating to 

circulatory problems in that leg beginning 

from a time proximate to the accident. The 

most recent ulcerations at the site of the 

ankle and foot skin graft areas, which 

produced conditions that required 

hospitalization in July 1995, have been 

reasonably attributed to the work accident. 

[Dancy's] physicians have also noted that the 

left leg has atrophied and is used little if 

any for weight bearing. [Dancy] ambulates by 

use of a cane and bearing his weight on the 

right leg. Both Dr. Cardea on December 7, 

1987 and Dr. Mathews on June 28, 1988 rated 

the disability to that leg at 100%, and the 

record does not show any improvement since 

1988. Rather, the medical records show that 

[Dancy's] left leg condition has even 

deteriorated since then. 

* * * * * * * 

 Also, Dr. Cardea on November 5, 1991, and 

[Dancy] at the evidentiary hearing, reported 

that his right knee would occasionally give 

way. We find from the evidence that [Dancy] 

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 found that the evidence proved a rated loss to 

both legs and that Dancy cannot use his legs in gainful 

employment. Accordingly, the commission affirmed the award. 

 II. 

 Georgia-Pacific first argues that the commission erred, as a 

matter of law, in failing to make a separate finding that Dancy 

suffered a permanent loss of use of his right leg. We disagree. 
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 Code § 65.2-503 provides, in pertinent part, as follows: 

 C. Compensation shall be awarded pursuant 

to § 65.2-500 for permanent and total 

incapacity when there is: 

 1. Loss of both hands, both arms, both 

feet, both legs, both eyes, or any two 

thereof in the same accident. 

* * * * * * * 

 D. In construing this section, 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. 

 "[I]n determining the extent of the loss of use of two 

members, the inability of the injured employee to engage in 

gainful employment [is] a proper element to . . . consider[]." 

Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 858-59, 80 

S.E.2d 537, 542 (1954). Indeed, this Court has held that "[t]he 

evidence of a rated loss of twenty-five percent of both legs, 

coupled with the additional evidence of [the employee's] 

incapacity for employment, supports the commission's finding that 

the employee is permanently unemployable as a consequence of 

[the] loss of function in both legs." Pantry Pride - Food Fair 

Stores, Inc. v. Backus, 18 Va. App. 176, 180, 442 S.E.2d 699, 702 

(1994). 

 The medical evidence in this record proved that Dancy had a 

rated loss of one hundred percent and fifteen percent, 

respectively, of his left and right legs. The commission found 

from credible evidence in the record that "the combination of the 
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two leg injuries render[ed Dancy] unemployable." The commission 

was not required to make separate findings that each leg is 

unusable in employment. See id. Rather, the proper inquiry was 

whether the rated loss of use in Dancy's legs rendered both of 

Dancy's legs effectively unusable. Accordingly, we hold that the 

commission did not err in basing its ruling of permanent and 

total incapacity on the combined effect of the injuries to both 

of Dancy's legs. See id. 

 III. 

 Georgia-Pacific next argues that the evidence was 

insufficient to prove that Dancy could not use his right leg in 

employment. Because we have held that this separate finding is 

not necessary and that Dancy needed to show only that the 

combined effect of the injuries to both of his legs rendered his 

legs unusable, this argument has no merit. 

 The evidence was sufficient to support the commission's 

finding that the combination of the two leg injuries rendered 

Dancy's legs unusable. "Findings of fact made by the commission 

are binding on this court if they are supported by credible 

evidence." Pantry Pride, 18 Va. App. at 180, 442 S.E.2d at 702. 

 Dr. Cardea's disability rating supports the commission's finding 

that Dancy had a one hundred percent disability in his left leg 

and a fifteen percent disability in his right leg. Moreover, the 

commission's finding that Dancy was unemployable was supported by 

the reports of Dr. Prince, who stated that Dancy was "unable to 
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engage in any gainful employment." 

 Although Dr. Cardea's earlier report indicated that Dancy 

could work subject to numerous restrictions and Stacey identified 

types of jobs that allegedly could satisfy the restrictions, the 

commission found that "Stacey did not represent that . . . such 

jobs [were] available." The commission also found that complying 

with Dr. Cardea's restrictions "would require extraordinary 

accommodation by an employer." Furthermore, Stacey's testimony 

did not take account of the contrary disability opinions of Dr. 

Prince and Dr. Evans. 

 Moreover, credible evidence supports the commission's 

decision giving Dr. Cardea's disability conclusions "little 

probative weight." The record contains "no evidence that [Dr. 

Cardea] has seen [Dancy] since September 11, 1994." Because 

"[t]he credibility of . . . expert witness[es] and the weight to 

be accorded the evidence [are] matters within the province of the 

[fact finder]," Horsley v. Commonwealth, 2 Va. App. 335, 339, 343 

S.E.2d 389, 391 (1986), we cannot disturb the commission's 

decision to rely on Dr. Prince's opinion that Dancy was 

unemployable. The commission's findings are supported by 

credible evidence. See Pantry Pride, 18 Va. App. at 180-81, 442 

S.E.2d at 702. 

 IV. 

 Finally, Georgia-Pacific contends that the commission erred 

in refusing to reopen the record for consideration of a letter 
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from Dr. Prince. We disagree. 

 The standard for reviewing petitions to 

reopen the record to receive after-discovered 

evidence is the same before the commission as 

it is before a trial court. . . . The four 

requirements which must be met before the 

record will be reopened on the basis of 

after-discovered evidence are that: (1) the 

evidence was obtained after the hearing; (2) 

it could not have been obtained prior to 

[the] hearing through the exercise of 

reasonable diligence; (3) it is not merely 

cumulative, corroborative or collateral; and 

(4) it is material and should produce an 

opposite result before the commission. 

Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452 

S.E.2d 881, 883 (1995) (emphasis omitted) (citations omitted). 

 The document offered by Georgia-Pacific is a letter from Dr. 

Prince, dated September 29, 1995, which was written in response 

to a request from Dancy's counsel for an update of Dancy's 

status. In the letter, Dr. Prince reiterated his opinion that 

Dancy "suffers with total disability and is unable to engage in 

any gainful employment as a result of his previous traumatic 

injuries sustain[ed] in 1985." He also stated that a "permanent 

total disability assessment should be performed by those engaged 

in functional capacity evaluation." Georgia-Pacific argued that 

Dr. Prince had thereby admitted that he was not trained to make 

an evaluation of Dancy's employability. 

 In denying the request, the commission found, in pertinent 

part, as follows: 

 It does not appear that this document 

contains any significant new medical 

information, only a summary of [Dancy's] 

treatment and [Dr. Prince's] opinion 
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regarding his condition when last seen. It 

is essentially the same information that may 

be obtained from the office notes of Dr. 

Prince that were timely filed with the 

Commission and are complete through September 

26, 1995, only one week before the hearing. 

[Georgia-Pacific's] bare statement that the 

information in the September 29, 1995 report 

is not cumulative, corroborative, or 

collateral is not supported by the record. 

 Moreover, the information contained 

therein was clearly available to either party 

before the hearing, and counsel has not 

explained why [Georgia-Pacific] could not 

have obtained it through due diligence. 

There is no evidence and [Georgia-Pacific] 

does not argue that it attempted to 

independently obtain this information, but 

appears to argue that its own lack of effort 

should be excused because [Dancy] did not 

diligently seek a prompt response to his 

request for information. We find no merit to 

that argument. We also find no basis for 

[Georgia-Pacific's] suggestion that the 

report was intentionally delayed by conduct 

of [Dancy's] counsel. Moreover, Dr. Prince's 

stated opinion in the September 29, 1995 

report is supportive and corroborative of 

[Dancy's] theory of the case, making such a 

suggestion illogical and unreasonable. 

 Upon consideration of the document and 

arguments presented, we conclude that the 

September 29, 1995 medical report is not of 

such character as would produce a different 

result on the merits; is merely cumulative, 

corroborative, and collateral; and is 

evidence that could have been obtained and 

presented before the hearing by the exercise 

of due diligence of either party. 

 The record supports all of those findings. We therefore 

conclude that the commission did not abuse its discretion in 

denying the request. See Old Dominion Elec. Coop. v. Virginia 

Elec. and Power Co., 237 Va. 385, 394-98, 377 S.E.2d 422, 427-29 
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(1989). 

 For these reasons, we affirm the commission's award. 

 Affirmed.