Virginia Oak Flooring Co. v. Chrisley

Decision Date15 March 1954
Docket NumberNo. 4203,4203
Citation80 S.E.2d 537,195 Va. 850
CourtVirginia Supreme Court

Gentry & Locke and R. E. Mason, for the appellants.

Alex M. Harman, Jr., A. Dow Owens and Gilmer, Harman & Sadler, for the appellee.


HUDGINS, C.J., delivered the opinion of the court.

On January 13, 1948, Floyd L. Chrisley, hereinafter designated claimant, suffered compensable injuries within the purview of the Workmen's Compensation Act. His most severe injuries were comminuted fractures of the upper third of the femur in each leg. From date of injury to July 24, 1952, a period of fifty-four months, claimant was awarded compensation under section 65-51 for temporary total incapacity, except from March 24, 1950 to June 4, 1950, and from November 6, 1950 to June 15, 1951, when he was paid for ten per cent loss of use of one leg and twenty-five per cent loss of use of the other under section 65-53. On July 16, 1951, claimant was again found to be temporarily totally disabled and was awarded compensation for such disability to begin on June 15, 1951.

On July 24, 1952, the insurance carrier filed a petition seeking a modification of the award. On September 24, 1952, the hearing commissioner in his findings of fact stated that the claimant had sustained twenty-five per cent permanent disability to his left leg and thirty per cent permanent disability to his right leg and suspended the payments for temporary total incapacity and awarded him, under section 65-53 (15), twenty dollars per week for ninety-six and one-quarter weeks, subject to credit for payments theretofore made under the award for ten per cent loss of use of one leg and twenty-five per cent loss of use of the other, but allowed no credit on compensation paid for temporary total incapacity. On review by the full Commission the award of the hearing commissioner was reversed, he dissenting, and claimant was awarded the maximum compensation provided under section 65-51 for total permanent incapacity. From that award this appeal was allowed.

The case was submitted to the Commission on a petition alleging that there had been a change in claimant's condition and praying that the award based on temporary total incapacity be changed to an award based on permanent partial loss of use of the legs. The burden was on the carrier to prove its allegation by a preponderance of the evidence. No verbal testimony was introduced. The evidence was confined to the written statements of six medical experts, none of whom attended the hearing and, hence, none of whom was cross examined. The majority, as well as the dissenting commissioner, based their different findings of fact upon the doctors' statements.

The carrier contends that the evidence proves that claimant has sustained only a permanent partial loss of use of both legs which limits his compensation to that stated in section 65-53 (15). Claimant, on the other hand, contends that the same statements of the doctors clearly prove that he has sustained a total and permanent loss of use of both legs which entitles him to receive the maximum compensation provided in section 65-51.

Commissioner Nuckols in the majority opinion states the history of the case and recites the evidence upon which the Commission's findings of fact are based, the pertinent part of which is as follows:

'After several periods of hospitalization, some necessitated by removal of bone plates and wires, Dr. Roy M. Hoover, the physician who had treated the claimant from the date of his injury, reported under date of March 20, 1950, that there was a permanent disability of 10% of the left leg and 25% of the right. He also advised that there was further general disability, the extent of which should be determined at a later date.

'Whereupon the carrier filed application for hearing upon the ground of change in condition to determine the extent of the permanent partial loss of use of the legs.

'An award based upon Dr. Hoover's report of March 20, 1950, was entered on May 5, 1950, providing for 61 1/4 weeks of compensation, beginning March 24, 1950. Commissioner Nickels' opinion contained this language:

''. . . it is clearly understood the present award has no bearing upon a future one to be entered which may cover any general partial disability the claimant may have suffered from the original accident.'

'The efficacy of the award was short lived for on June 4, 1950, claimant was again admitted to the hospital for an operation for varicose veins made necessary by the long period of inactivity. Payments on account of the scheduled injury were suspended and payments on account of temporary total disability were resumed on that date. After a healing period payments under the award of May 5, 1950, were resumed on November 6, 1950, by memorandum of agreement.

'Upon a report of Dr. D. S. Divers who performed the surgery and rendered treatment for the circulatory disorders, dated June 15, 1951, stating that his patient was again temporarily totally disabled, payments on that account were resumed on that date and payments under the award of May 5, 1950, again suspended. A memorandum of agreement to this effect was duly entered into and filed. There followed several examinations by specialists in circulatory disorders to determine the best method of treating claimant, the sum total of which was a decision among the physicians that further surgery would probably not benefit their patient. Summing up his opinion Dr. Divers reported on June 30, 1952, as follows:

''I may be pessimistic about any permanent improvement in Mr. Chrisley's legs but it appears to me that we have gone to the point where I question whether any further surgery would decrease the permanent disability. I believe if a satisfactory settlement could be made with Mr. Chrisley, on a permanent disability that the psychological effect might be beneficial to him. I feel that he has a 25% permanent disability to his left leg although this leg does not appear to be as good as the right due to the deformity that was present in his foot before the accident. He has a 30% permanent disability to his right leg which is partially based on the partial ankylosis to the knee.'

'Thereupon the carrier asked for a hearing to determine the percentage loss of use of the legs. Payments for temporary total disability were suspended as of July 24, 1952. Under date of September 5, 1952, Dr. Divers supplemented his report of June 30, 1952, as follows:

''This letter is in answer to your request by phone in regard to the overall disability of Mr. Floyd Chrisley. I feel that Mr. Chrisley is not able to hold a job and earn a living but he is probably able to do odd jobs around the house. I feel that 75% overall disability would be a fair estimate.'

'On July 24, 1952, Dr. George S. Bourne, who had examined claimant several times at the carrier's request, reported:

''I believe that he may be able to do some very light carpenter work, possibly around his own workshop at home, but this will probably be the extent of his activity.'

'Dr. Fredric Delp in a medical report dated September 6, 1952, reported as follows:

''Everybody concerned is familiar with Mr. F. L. Chrisley's history and the severe fractures he sustained. Since I have seen him he has had strippings and ligations of varicose veins in both legs. At the present time he has marked limitation of hip motion on the right and limitation of flexion of rt. knee. The same is true of the left hip and knee but to a somewhat lesser degree. The rt. femur is still plated. There is marked impairment of circulation in both lower extremities with ulceration of the left leg. There have been ulcers on the rt. leg.

"As a whole I consider Mr. Chrisley totally disabled for any kind of work that would require being on his feet, a situation that is most likely to be permanent. It is possible that in the future he might engage in some light sitting down work, but his training and abilities are not of that nature. I sincerely doubt that Mr. Chrisley will ever be able to return to any work that he is fitted for and be able to support himself at any gainful employment.'

'Dr. L. Perry Hyde in a medical report dated September 8, 1952, has the following to say:

''After a physical examination of Floyd Chrisley on September 8, 1952 -- There is 75% disability of right hip and 55% disability of left thigh. This man is unable to fulfill any of the requirements necessary for physical work.'

'At the hearing the matter was submitted upon the medical reports. The hearing commissioner awarded compensation under section 65-53, based upon the estimates of Dr. Divers in his report of June 30, 1952, for 96 1/4 weeks subject to credit for sums theretofore paid under the award of May 5, 1950. This award is before us for review upon application of the claimant who contends that his incapacity for work resulting from his injury is total and that he should be compensated according to the provisions of section 65-51, Code of 1950.'

The dissenting commissioner based his findings of fact upon that part of the statement of Dr. Divers of June 30, 1952, in which he said: '. . . I feel that he has a 25% permanent disability to his left leg . . .' and 'a 30% permanent disability to his right leg . . .', in which conclusion Dr. Hoover concurred in the following language: '. . . I believe Dr. Divers' estimate should be relied upon, since he has undoubtedly taken both conditions into consideration. ' The dissenting commissioner disregarded all other testimony tending to show that claima...

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    ...of earnings, but is indemnity for permanent loss of use, total or partial, of the injured member. Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 856-57, 80 S.E.2d 537, 541 (1954); J.A. Foust Coal Co. v. Messer, 195 Va. 762, 766, 80 S.E.2d 533, 535 (1954). After the scheduled benefits f......
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