COURT OF APPEALS OF VIRGINIA 

Present: Judges Koontz, Bray and Annunziata 

EASTERN AIRLINES, INC. 

AND 

TRAVELERS INDEMNITY COMPANY 

 MEMORANDUM OPINION*

v. Record No. 0293-95-4 PER CURIAM 

 JULY 18, 1995 

VINCENT RAYMOND JANES, JR. 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Elizabeth A. Zwibel; Siciliano, Ellis, Dyer & 

Boccarosse, on brief), for appellants. 

 (Michael W. Heaviside; Ashcraft & Gerel, on brief), 

for appellee. 

 Eastern Airlines, Inc. and its insurer contend that the 

Workers' Compensation Commission erred in finding that Vincent 

Raymond Janes, Jr. was entitled to an award of permanent and 

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. Rule 5A:27. 

 Janes, an airline pilot, injured his back on August 2, 1984 

while lifting a flight bag. Shortly thereafter, he underwent 

surgery for a herniated disc. The employer accepted Janes' back 

injury and resulting left lower extremity weakness as 

compensable. Pursuant to a memorandum of agreement and award, 

the employer paid 500 weeks of temporary total disability 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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benefits to Janes. These benefits ended on March 14, 1994. On 

April 4, 1994, Janes filed an application seeking permanent total 

disability benefits for the loss of use of both of his legs. His 

application was based upon impairment ratings rendered by his 

treating neurosurgeon, Dr. Michael W. Dennis, in August 1993 and 

March 1994. 

 Janes testified that his condition had worsened since the 

1984 accident and that he suffers from pain in both legs. He 

stated that he had not worked since the accident, and that he did 

not believe he could work. He is able to perform some household 

chores and can drive short distances. He is able to stand for 

thirty-five to forty minutes and to sit for thirty to forty-five 

minutes. He can walk for short periods of time. However, he 

takes narcotic medications on a daily basis to control his pain. 

 He must also use a brace and orthopedic shoes. 

 Beginning in April 1986, Dr. Dennis consistently opined that 

Janes was totally disabled from all forms of employment. On 

August 17, 1993, Dr. Dennis opined that Janes had reached maximum 

medical improvement. Dr. Dennis rated Janes' left leg impairment 

at seventy-five percent. On March 11, 1994, Dr. Dennis noted 

that Janes remained symptomatic. Dr. Dennis rated Janes' right 

leg impairment at twenty percent. Dr. Dennis based this opinion 

on Janes' "professed weakness and pain" in the right leg. 

Moreover, there are several references in Dr. Dennis' notes to 

Janes' right leg pain and collapse of his right leg due to 
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weakness associated with his back complaints. 

 On June 13, 1994, Dr. Niren N. Bhaduri, a general surgeon, 

opined that Janes' right leg was thirty percent disabled and his 

left leg was seventy-five percent disabled. 

 Dr. Leonard G. Perlman, who provided psychological 

consultation on July 29, 1994, concluded that Janes was not 

"employable at the competitive or even sheltered level." Dr. 

Perlman stated that Janes' difficulties with walking and the 

"unsteadiness in both of his legs would hinder his ability to get 

a job and sustain even the usual and customary movement in a work 

setting." Dr. Perlman also cited Janes' chronic, intractable low 

back and leg pains, and his difficulties walking with pain and 

standing or sitting for reasonable periods, as factors which 

weighed against his employability. 

 Code § 65.2-503(C)(1) provides for an award of compensation 

under Code § 65.2-500 for permanent and total incapacity when 

there is loss of use of both legs in the same accident. A 

ratable loss of use of both legs of less than 100 percent, 

coupled with evidence of incapacity for employment, is sufficient 

to establish that an employee is permanently unemployable. 

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

(1994). 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 
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Factual findings made by the commission will be upheld on appeal 

if supported by credible evidence. James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

Janes' testimony, and the uncontroverted notes and reports of 

Drs. Dennis, Bhaduri, and Perlman, provide sufficient credible 

evidence to support the commission's findings that Janes 

sustained a ratable impairment to both of his legs resulting in 

his inability to engage in gainful employment. Therefore, the 

commission did not err in awarding permanent total disability 

benefits to Janes. 

 For the reasons stated, we affirm the commission's decision. 

 Affirmed.