Opinion
49585 Nos. 2138-92-4 and 2241-92-4
August 23, 1994
In the Court of Appeals of Virginia on Tuesday the 23rd day of August, 1994.
Before Chief Judge Moon, Judges Baker, Benton, Coleman, Koontz, Willis, Elder, Bray and Fitzpatrick
William C. Walker (Donna White Kearney; Taylor Walker, P.C., on brief), for Mister Kleen Maintenance Company, et al.
Stephen W. Robinson (Lynn A. Wurzburg; McGuire, Woods, Battle Boothe, on brief), for Ernest Elmer Clark.
UPON A REHEARING EN BANC OPINION
On December 14, 1993 a panel of this Court affirmed in part and reversed in part a decision of the Workers' Compensation Commission (commission). See Mister Kleen Maintenance Co. v. Clark, 17 Va. App. 474, 438, S.E.2d 304 (1993). The employer's petition for rehearing en banc was granted on January 20, 1994, and the mandate of the December 14, 1993 was stayed.
The appeal was reheard en banc on June 2, 1994. For the reasons stated in the original majority opinion, the Court affirms the decision of the commission in all respects except as to the determination of the conclusive presumption of permanent total disability. On that issue, for the reasons stated in the original majority opinion, the finding of the commission is reversed. Accordingly, the stay of the mandate of the December 14, 1993 opinion is lifted and the case remanded to the commission for final action consistent with that opinion and its adoption by this order.
Chief Judge Moon and Judges Coleman and Baker, for the reasons stated in Judge Coleman's dissent from the original decision, 17 Va. App. at 477-78, 438 S.E.2d at 306 (Coleman, J., dissenting), would reverse the findings of the commission and dismiss the claim.