COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
HUDGINS MASONRY, INC. AND
ROCKWOOD INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1515-96-3 CHIEF JUDGE NORMAN K. MOON
FEBRUARY 25, 1997
RONALD ANDERSON HANDY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy, III (Mark M. Caldwell, III;
Sands, Anderson, Marks & Miller, on brief),
for appellants.
Bettina C. Altizer (Jack V. Altizer; Altizer &
Altizer, on brief), for appellee.
Hudgins Masonry, Inc. ("Hudgins") appeals the decision of
the commission awarding Ronald Anderson Handy permanent total
disability benefits. Hudgins raises two questions: (1) whether
the commission misapplied the two-prong test for determining a
claimant's "imbecility" under former Code § 65.1-56(18); and (2)
whether the commission erred in finding that Handy had
established his entitlement to permanent and total disability
benefits under the two-pronged test for determining a claimant's
"imbecility" under former Code § 65.1-56(18). Holding that the
commission properly applied the two-pronged test for determining
"imbecility" and that the evidence was sufficient to support the
finding that Handy's brain injury rendered him unemployable and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
affected the non-vocational quality of his life by eliminating
his ability to engage in a range of usual cognitive processes, we
affirm.
On May 23, 1984, while working for Hudgins, Handy, then age
twenty-one, fell off a scaffold approximately forty feet in the
air. He was rushed to a hospital emergency room where it was
determined that he suffered from massive head and brain injuries
and fractures of the left arm and pelvis. MRIs and x-rays
revealed that bone fragments had been driven as much as five to
six centimeters into the left parietal area of Handy's brain.
Handy's condition required extensive surgery and prolonged
hospitalization. On July 25, 1984, Handy was determined, "by
reason of physical injury . . . to be wholly incapable of taking
care of himself and his estate, [and] is incapacitated and wholly
legally disabled." Accordingly, Handy's mother, Debeter L.
Price, was appointed Handy's guardian. On October 28, 1984,
Handy was discharged to the full-time care of his mother with
continuing care by rehabilitation, orthopaedic, and neurological
specialists.
On April 11, 1994, Handy was seen by Dr. Joel C.
Morgenlander, a neurologist and assistant professor of medicine
at Duke University Medical Center. On July 15, 1994,
Morgenlander wrote Handy's counsel, informing him that "[i]t is
my opinion as a Board Certified Neurologist that Mr. Handy is
very likely to be permanently unemployable because of his
neurologic deficits. It has been ten years since his accident
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and I don't expect significant further improvement to occur. Mr.
Handy has cognitive, visual and motor deficits that are quite
severe."
Handy's claim for compensation was approved, and Handy was
paid temporary total disability from the date of the accident
until January, 1994. On May 17, 1994, Handy filed a claim
requesting the Virginia Workers' Compensation Commission award
him permanent total disability benefits. On November 14, 1994, a
deputy commissioner awarded Handy permanent total disability
benefits. The award of permanent full benefits was affirmed by
the full commission on April 10, 1995.
Hudgins appealed to this Court and after hearing the matter,
on February 20, 1996, we entered an order reversing the
commission's decision and remanding the case to the commission
for a "reconsideration of the record presently before it in light
of a correct application of the term 'imbecility'" pursuant to
Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 366 S.E.2d 271
(1988). On May 20, 1996, the commission issued its second
opinion, reaffirming its prior opinion of April 10, 1995, and
finding that Handy was entitled to an award of "permanent total
disability pursuant to the criteria set forth in the Court of
Appeal's Remand Order of February 20, 1996."
The determination of "imbecility" within the meaning of
former Code § 65.1-56(18) involves a two pronged test: (1) the
brain injury must render the claimant permanently unemployable;
and (2) it must affect the non-vocational quality of his life by
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eliminating his ability to engage in a range of usual cognitive
processes. Barnett, 6 Va. App. at 36, 366 S.E.2d at 274. In
Barnett we concluded that a brain injury which had this effect
was "the functional equivalent, and meets the intended statutory
definition, of incurable imbecility contemplated by [former] Code
§ 65.1-56(18)." Id.
Dr. Morgenlander examined Handy ten years after Handy's
accident and reported that Handy "could name objects but had
difficulty with their parts. He could remember 6 of 6 objects at
zero minutes but only 2 of 6 after 3 minutes even with hints. He
could follow simple commands but had difficulty repeating no if
ands or buts." Dr. Morgenlander also found that Handy's
neurologic examination demonstrates a spastic
right hemiparesis with right homonomous
hemianopsia, decreased sensation of the right
side of his body and mild expressive type
aphasia. Additionally, he suffers from
headaches and seizures. . . . Due to his
significant cognitive, visual and motor
disabilities I don't believe he will be able
to return to work.
In his letter of July 15, 1994, Dr. Morgenlander concluded that:
"Mr. Handy is very likely to be permanently unemployable because
of his neurological deficits. It has been ten years since his
accident and I don't expect significant further improvement to
occur. Mr. Handy has cognitive, visual and motor deficits that
are quite severe."
The fact that the commission also reviewed evidence
regarding Handy's non-neurological injuries, e.g., the damage to
his left elbow and pelvis, does not render the commission's
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finding in error. The commission was careful to indicate that it
was Handy's brain injury, not his other injuries, which resulted
in both his unemployable status and the impairment of his usual
cognitive processes. The commission specifically stated that
Handy's brain "injury resulted in impairments which, independent
of the other non-related physical injuries, would render [Handy]
totally disabled." (Emphasis added). In addition, the
commission explained that:
The brain injury resulted in the loss of use
of the right leg, intermittent seizures, and
limited short-term memory. The medical
evidence does not specifically separate the
effects of these injuries on [Handy's]
employability, as pointed out by counsel for
the employer, but we find that they
effectively render him unemployable. This
would be the case regardless of the injury to
his left arm and his altered gait which may
be the result of the physical injury to his
pelvis.
(Emphasis added).
The record also indicates that the commission properly
reviewed the evidence as it related to prong two of the Barnett
test, concerning the impairment of Handy's non-vocational quality
of life. The evidence presented by Handy's physicians was
sufficient to sustain the commission's finding that Handy's brain
injury affected the non-vocational quality of his life by
eliminating his ability to engage in a range of usual cognitive
processes.
Both Drs. Morgenlander and Coonrad, an orthopaedic surgeon
at Durham-Chapel Hill who examined Handy, provided evidence of
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Handy's cognitive deficiencies resulting from his brain injury.
Dr. Morgenlander's determination that Handy could not remember
two of six objects after three minutes and could not follow
conditioned commands is evidence of both Handy's unemployable
status and impairment of usual cognitive processes that impacted
his non-vocational and vocational life. In his letter of January
4, 1995, Dr. Morgenlander concluded that:
I believe Mr. Handy suffered an irreversible
brain injury rendering him permanently
unemployable and affecting the nonvocational
quality of his life due to his cognitive,
visual, and motor deficits. While I did say
in my conclusion that Mr. Handy's aphasia was
mild, that by no means denotes a language
problem that does not interfere with Mr.
Handy's interactive life. While he could
name objects, he could not name parts of
objects and could not repeat normally. His
memory was diminished. . . . [He has] severe
visual deficit due to his field cut and his
severe hemiparesis and hemisensory loss.
Similarly, Dr. Coonrad concluded that Handy's brain injury
had resulted in debilitating cognitive changes resulting in his
inability to work or to independently care for himself. Again,
the commission's review of evidence of the non-brain injuries
sustained by Handy does not render the finding void. The
commission's findings clearly indicate that it was careful to
differentiate between the effects of Handy's brain and non-brain
injuries, as is evidenced by the commission's finding that:
Handy's short-term memory is severely
limited. . . . He apparently is able to
follow only simple commands. Although
[Handy] can read, this ability must be
considered in light of his limited short term
memory. Dr. Coonrad notes that [Handy] is
not able to handle his own affairs, nor care
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for himself on a daily basis without his
family's assistance.
Holding that the commission properly applied the Barnett
test and that the evidence was sufficient to support the finding
that Handy's brain injury rendered him unemployable and affected
the non-vocational quality of his life by eliminating his ability
to engage in a range of usual cognitive processes, we affirm.
Affirmed.
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