                      COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia


JOHN EDWARD JENKINS
                                             MEMORANDUM OPINION* BY
v.   Record No. 3065-01-2                 JUDGE JERE M. H. WILLIS, JR.
                                                  JUNE 11, 2002
DYNATRAN, INC. AND
 ZURICH INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Leila H. Kilgore (Benjamin M. Smith, Jr.;
           Kilgore & Smith, on brief), for appellant.

           Edward H. Grove, III (Brault Palmer Grove
           Zimmerman White & Steinhilber LLP, on brief),
           for appellees.

     John Jenkins appeals a decision of the Workers'

Compensation Commission finding that he failed to submit a claim

for a brain injury within two years of his compensable accident

and that his claim for permanent total disability is barred by

Code § 65.2-601.   We affirm the commission's decision.

                            I.    BACKGROUND

                             A.   INJURIES

     On July 30, 1991, Jenkins was working in a "cherry picker"

bucket, over traffic, changing a light bulb in a traffic signal.

A truck hit the bucket, causing the arm supporting the bucket to

break.   Jenkins fell onto the truck, was knocked out, was

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
carried some distance down the road, and then fell off the truck

onto the ground.

     The medical records indicate that Jenkins was "alert and

oriented at the scene with stable vital signs."    He was

transported by emergency personnel to Fairfax Hospital, where he

was diagnosed as having suffered a distal ulnar and radial

fracture to the right upper extremity and an L1 compression

fracture (arm and back injuries).    The records report that

during his evaluation in the emergency room he was

"neurologically intact and the neurologic status has not changed

over the last two days."    He was hospitalized from July 30 to

August 7, 1991.

     On June 26, 1992, Jenkins was referred to Robert Fetrow, a

licensed clinical social worker.    Mr. Fetrow examined Jenkins

and diagnosed major depression, single episode.    He ruled out

post-concussive syndrome.    On July 23, 1992, Dr. Andrew

Schiavone, a neurologist, examined Jenkins and noted the

following:

             As noted above apparently there was head
             trauma that was associated with the fall
             because of the period of unconsciousness and
             to this day the incidents from the time that
             he reached for the light to the time he woke
             up by the side of the road are gone and his
             relating the story is apparently what he
             deduced and what was told to him by those at
             the scene.




                                 - 2 -
He diagnosed Jenkins with "depressive disorder secondary to

chronic pain and loss," and a "possible post-concussive

disorder."

     On November 17, 1992, David W. Hebda, Ph.D., saw Jenkins

for a neuropsychological assessment.    Following an examination,

Dr. Hebda stated, "Although the existence of a preexisting

attention disorder must be considered, Mr. Jenkins' pattern of

responses on a variety of attentional tasks is consistent with a

mild head injury . . . ."    On July 10, 1997, Jenkins was

referred to Amy B. Taylor, a licensed clinical social worker,

for counseling.   The purpose of the referral was to assist him

in dealing with depression, anger control, and anxiety.      Jenkins

was seen by Ms. Taylor until September 1998.

                      B.    PROCEDURAL HISTORY

     Jenkins filed a claim for compensation related to his

injuries sustained in the July 30, 1991 accident.   His claim was

accepted as compensable and a memorandum of agreement ("MOA")

was executed on May 1, 1992.    The MOA recited that Jenkins was

injured when he "[f]ell to the ground while changing [a] light

bulb in [a] traffic signal."    It described his injuries as a

broken right wrist and a hurt back.

     On May 2, 1992, based on the MOA, the commission awarded

Jenkins ongoing temporary total disability benefits beginning on

August 7, 1991.   In November, 1992, the parties submitted a

second MOA to the commission, correcting the average weekly

                                - 3 -
wage.    A second award, dated November 17, 1992, described the

nature of Jenkins' injury or illness and the body parts

affected, stating that he "[f]ell to ground changing [a] traffic

signal bulb, injur[ing the] back & fractur[ing the] right

wrist."

        On February 23, 1997, Jenkins filed an application for

hearing seeking payment of bills accrued while in Ms. Taylor's

care.    He made no claim for head or brain injury.     Following a

complete review of the medical records, the deputy commissioner

found that Dynatran, Inc. would be responsible for Ms. Taylor's

charges, because Jenkins' psychological problems related

directly to the occupational injury.     The full commission

affirmed.

        On March 23, 2001, Jenkins filed an application for hearing

alleging permanent total disability benefits pursuant to Code

§ 65.2-503(3) for "injury to the brain which is so severe as to

render the employee permanently unemployable in gainful

employment."    In support of that application, he submitted a

letter from Dr. Schiavone dated June 18, 2001.

             To my knowledge he was gainfully, steadily
             employed for years leading up to this
             incident. He tried to return to work after
             the accident.

             Post accident he sustained a head injury
             significant enough to cause loss of
             consciousness. This led to emotional,
             cognitive, behavioral and ultimately
             employment difficulties.


                                 - 4 -
        Following a hearing, the deputy commissioner ruled that the

commission lacked jurisdiction to award benefits under Code

§ 65.2-503, because Jenkins had filed no claim for brain trauma

within two years of the July 30, 1991 accident and no "injury to

the brain" had been accepted originally as compensable.      The

deputy commissioner noted that while the possibility of head

trauma had been referenced in medical reports within five months

after the accident, no claim for head injury had been included

in the May 1, 1992 MOA or the November, 1992 amended MOA or

covered by the resulting awards.

        On October 12, 2001, the full commission affirmed.   It

held:

             After carefully reviewing the record in its
             entirety, we have found neither a specific
             claim for "brain injury," nor inclusion of
             such an injury in either of the two MOA
             executed within two years of the accident on
             July 30, 1991. The employer's "knowledge"
             or "notice" of the claimant's injury --
             without more -- is insufficient to toll the
             statute of Code § 65.2-601. A claim for
             each such injury must be lodged with the
             employer and Commission.

Jenkins appeals that decision.

                             II.    ANALYSIS

        On appeal, "[d]ecisions of the commission as to questions

of fact, if supported by credible evidence, are conclusive and

binding on this Court."     Manassas Ice & Fuel Co. v. Federated

Mutual Ins. Co., 13 Va. App. 227, 229, 409 S.E.2d 824, 826

(1991).    "The fact that contrary evidence may be found in the

                                   - 5 -
record is of no consequence if credible evidence supports the

commission's finding."     Id.   We view the evidence in the light

most favorable to the party prevailing below.       Creedle Sales Co.

v. Edmonds, 24 Va. App. 24, 26, 480 S.E.2d 123, 124 (1997).

However, "[t]his Court is not bound by the legal determinations

made by the commission."     Robinson v. Salvation Army, 20

Va. App. 570, 572, 459 S.E.2d 103, 104 (1995).

      Code § 65.2-503(C)(3) provides in pertinent part:

           C. Compensation shall be awarded pursuant
           to § 65.2-500 for permanent and total
           incapacity when there is:

                3. Injury to the brain which is so
                severe as to render the employee
                permanently unemployable in gainful
                employment.

Jenkins contends that the commission erred in holding that his

claim for permanent total disability under Code § 65.2-503(C)(3)

was time-barred because he failed to submit his claim within two

years following his compensable accident.

      To receive compensation, an injured employee must file a

notice of claim within two years after the accident.       See Code

§ 65.2-601.   This notice must specify all injuries that are

claimed to be compensable.       Shawley v. Shea-Ball Constr. Co.,

216 Va. 442, 446, 219 S.E.2d 849, 853 (1975).      "[I]t is this

notice to the employer and his insurance carrier that gives them

knowledge of the accident and of their potential liability."

Id.


                                   - 6 -
     Jenkins argues that his medical record provided notice of a

brain injury within the two-year statutory period.    It did not.

See Johnson v. Paul Johnson Plastering, 37 Va. App. 716, 561

S.E.2d 40 (2002).

     In Johnson, the claimant, while working on stilts, fell,

hitting his right arm and forehead.     He was diagnosed with a

broken right wrist and a lacerated eyebrow.    Several months

after the fall, he began complaining of headaches, back and neck

pain, blurred vision, and lack of alertness.    Instead of

improving, his condition deteriorated.    The medical reports made

no mention of a brain injury.   However, they included

discussions of depression and of psychiatric and cognitive

problems.   Id. at 719-20, 561 S.E.2d at 42.    The employer filed

a first report of accident with the commission and Johnson

followed by notifying the commission and his employer of the

"Nature of Injury" as "rt. wrist, head, back, left leg and

foot."   The parties reached a settlement on the claim and

executed an MOA.    The only injury listed on the MOA was "arm."

The agreement was approved, and Johnson began receiving

disability compensation.    Id. at 720-21, 561 S.E.2d at 42.

     Nine years after his injury, Johnson filed a claim for

permanent total disability, pursuant to Code § 65.2-503(C)(3),

asserting a brain injury.   We held that his claim was

time-barred.   We said:



                                - 7 -
            Claimant argues that these medical reports
            of cognitive problems placed employer on
            notice of an injury to the brain. However,
            none of the medical evaluations conducted
            within two years of the accident mention any
            physical trauma to the brain. . . .

            While employer clearly knew claimant had
            mental problems, nothing suggested the cause
            of these problems was an injury to the brain
            . . . . These facts do not support the
            claimant's contention that he filed notice
            of an injury to the brain within the
            two-year statute of limitations established
            by Code § 65.2-601.

            *     *      *      *       *     *      *

            Additionally, the memorandum of agreement
            executed by the parties did not mention an
            injury to the brain, but instead described
            the "nature of injury" as "claimant slipped
            and fell from drywall slat and injured arm."
            This characterization of the injury
            indicates employer believed the only injury
            from the fall was to the arm.

            Use of the single word, "head," generally is
            not sufficient filing of a claim for injury
            to the brain, especially where the only
            evidence to suggest this type of injury is a
            minor laceration to the eyebrow. Nothing in
            the record provided notice that injury to
            the brain was a possible claim in this case.
            The initial claim letter, the medical
            reports, the memorandum of agreement, the
            settlement letters -- none of these
            documents indicate the employer was informed
            of an injury to the brain.

            The requirements of Code § 65.2-601 were not
            met.

Johnson, 37 Va. App. at 724-26, 561 S.E.2d at 44-45 (citations

omitted).




                                - 8 -
     As in Johnson, nothing in the record before us provided

Dynatran, within two years of Jenkins' injury, notice of a brain

injury.   The medical records report that when Jenkins arrived in

the emergency room, he was "alert and oriented" with "stable

vital signs."   He was diagnosed only with arm and back injuries.

     Jenkins' subsequent medical record provides little

suggestion of a brain injury.   On June 26, 1992, Robert Fetrow,

a licensed clinical social worker, examined Jenkins and reported

major depression and ruled out post-concussive syndrome.    On

July 23, 1992, Dr. Schiavone noted that "apparently there was

head trauma that was associated with the fall . . ." but

diagnosed Jenkins with depressive disorder secondary to chronic

pain and loss, and a possible post-concussive disorder.

     On November 17, 1992, Jenkins received a neuropsychological

assessment from Dr. Hebda.   Dr. Hebda noted that "[a]lthough the

existence of a preexisting attention disorder must be

considered, Mr. Jenkins' pattern responses on a variety of

attentional tasks is consistent with a mild head injury . . . ."

Although the medical records suggest the possibility that

Jenkins suffered head trauma in his accident, that suggestion is

insufficient to assert that he suffered a brain injury and to

serve as notice of such to his employer.

     The two MOAs made no mention of a brain injury and did not

put the employer on notice of such.     The May 1, 1992 MOA stated

that Jenkins had suffered a broken right wrist and back

                                - 9 -
injuries.   The November, 1992 MOA modified only the average

weekly wage.   It included no amendment to the section

designating the injury or illness.     Nothing in the record

provided, within the two-year statute of limitation, notice that

brain injury was a claim in the case.

     The decision of the commission is affirmed.

                                                          Affirmed.




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