                    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

                                - 4 -
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

                                - 5 -
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

                              - 6 -
          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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