                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judge Benton and
            Senior Judge Duff


MAHER ELGNAWEY
                                            MEMORANDUM OPINION * BY
v.   Record No. 1144-99-4                 JUDGE JAMES W. BENTON, JR.
                                                 MARCH 21, 2000
NORTHERN VIRGINIA STEEL CORPORATION
 AND TRAVELERS INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Maher Elgnawey, pro se, on brief).
             Appellant submitting on brief.

             (Roger S. Mackey, on brief), for appellees.
             Appellees submitting on brief.


     The Workers' Compensation Commission denied Maher Elgnawey's

claim for total and permanent disability benefits.      Elgnawey

contends the commission erred in ruling that he failed to prove 1)

he sustained an injury to the brain, resulting in total and

permanent disability, or 2) he was unable to use his legs in any

substantial degree in gainful employment, resulting in total and

permanent disability.    For the reasons that follow, we affirm the

commission's decision.

                                  I.

     It is a fundamental principle that the commission's factual

findings are binding on appeal if they are supported by credible

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
evidence.   See Code § 65.2-706(A); Spruill v. C.W. Wright Constr.

Co., 8 Va. App. 330, 332, 381 S.E.2d 359, 360 (1989).     "In

determining whether credible evidence exists, the appellate

court does not retry the facts, reweigh the preponderance of the

evidence, or make its own determination of the credibility of

the witnesses."    Wagner Enterprises v. Brooks, 12 Va. App. 890,

894, 407 S.E.2d 32, 35 (1991).    Therefore, unless we determine,

as a matter of law, that Elgnawey proved by a preponderance of

the evidence that he is totally and permanently disabled as a

result of his industrial accident, the commission's contrary

decision is binding and conclusive.      See Owens v. Virginia Dept.

Transportation/Commonwealth, 30 Va. App. 85, 87, 515 S.E.2d 348,

349 (1999).

     The statute in effect at the time of Elgnawey's injury,

provided as follows:

            The loss of both hands, both arms, both
            feet, both legs, or both eyes, or any two
            thereof, in the same accident, or an injury
            for all practical purposes resulting in
            total paralysis as determined by the
            Commission based on medical evidence or an
            injury to the brain resulting in incurable
            imbecility or insanity shall constitute
            total and permanent incapacity.

Code § 65.1-56(18).    Applying this statute, we have defined

"incurable imbecility" as "an irreversible brain injury which

renders the employee permanently unemployable and so affects the

non-vocational quality of his life [that it] eliminat[es] his

ability to engage in a range of usual cognitive processes."

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Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 36, 366 S.E.2d

271, 274 (1988).

                                II.

     Credible evidence in the record supports the commission's

finding that Elgnawey was not entitled to total and permanent

disability benefits for the injury he suffered.   Viewed in the

light most favorable to the prevailing party, see Owens, 30 Va.

App. at 87, 515 S.E.2d at 349, the evidence proved that on May

26, 1987, Elgnawey fell off a ladder, injuring his back.   A

physician initially diagnosed muscle strain.   Later, Dr. Joseph

White diagnosed a herniated disc and performed a discectomy and

a laminectomy.   In an April 1998 report, Dr. White gave Elgnawey

a twenty-percent impairment rating in both lower extremities

and, several weeks later, concluded that Elgnawey was disabled

from multiple etiologies, noting that his "depression is . . .

of significant concern."   Dr. White further opined that

Elgnawey's "low back pain and the fact that he cannot trust his

legs, keeps him from any gainful employment at this time."

     Dr. Richard Baither, a licensed clinical psychologist,

diagnosed Elgnawey with major depression due to chronic pain and

recommended inpatient chronic pain management treatment.   In

October 1997, Dr. Baither opined that Elgnawey is totally and

permanently disabled because of his psychiatric condition, which

is causally related to the work injury.   Dr. Baither testified



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that he based his diagnosis of depression on subjective

complaints from Elgnawey rather than on objective symptoms.

     Dr. Baither also testified that although Elgnawey suffered

a sudden shock to his spinal cord, he did not suffer a brain

injury and does not have post-traumatic stress disorder.      He

believed that the changes to Elgnawey's central nervous system

were such that Elgnawey's nerve cells are no longer able to

produce sufficient amounts of neurotransmitters.    He also

testified that the two strokes Elgnawey suffered could have a

traumatic effect on the brain.    Dr. Baither further said that

Elgnawey's neck injuries from automobile accidents in 1992 and

1995 were additional sources of pain and that a 1997 heart

attack was a significant source of stress for Elgnawey.

     Elgnawey's vocational rehabilitation specialist testified

that Elgnawey is not employable.    He also testified that

Elgnawey's strokes, heart attack, and automobile accidents could

be the cause of his disability.    He conceded that he did not

attempt to determine the cause of Elgnawey's disability.

     Upon its review, the commission rejected Elgnawey's

contention that a brain injury can be compensable under the

statute even if it is a slow and gradual consequence of an

injury by accident to the spinal cord.   Citing Allan & Rocks,

Inc. v. Briggs, 28 Va. App. 662, 508 S.E.2d 335 (1998), Elgnawey

argues that the commission erred.    We disagree.   Briggs, which



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decided issues related to "compensable consequences" of a work

related injury, does not support his argument.

     Our cases establish that total and permanent disability

resulting from brain injury under Code § 65.1-56(18) is

established only when an employee proves a sudden shock or

injury specifically to the brain, not to some other body part

such as the spinal cord.   See, e.g., Daniel Const. Co. v.

Tolley, 24 Va. App. 70, 76, 480 S.E.2d 146, 148 (1997) (holding

that post-traumatic stress disorder induced by a dynamite blast

was "an 'injury' that resulted in 'structural changes' to the

brain"); Barnett, 6 Va. App. at 32, 366 S.E.2d at 272 (noting

that injury was caused by a direct trauma to the brain which

occurred when the employee was hit by a fireplace door).

     In Tolley, this Court affirmed a finding by the commission

that Tolley was entitled to total and permanent disability

benefits for post-traumatic stress disorder resulting from a

sudden dynamite explosion which occurred in the course of his

employment.   See 24 Va. App. at 77, 480 S.E.2d at 148.    The

commission relied upon the doctor's testimony that Tolley had

suffered a severe brain injury and upon Tolley's medical

records, which indicated that his injury had been consistently

diagnosed since the time of the explosion.   See id. at 77, 480

S.E.2d at 148-49.   The doctor reported "that post-traumatic

stress disorder results in irreversible structural changes

within the neurons in the brain that include damage to

                               - 5 -
neurosynaptic receptors and serotinergic neurotransmitters . . .

[and] opined that such damage had occurred to [Tolley's] brain

and that this injury impaired [his] cognitive abilities."     Id.

at 78, 480 S.E.2d at 149.   Thus, "we [held] that the evidence

was sufficient to prove that [Tolley] suffered an injury to his

brain."   Id. at 77, 450 S.E.2d at 148.

     In this case, however, the evidence proved that Elgnawey

suffered an injury to his spinal cord, rather than his brain.

Thus, Elgnawey did not prove the necessary link between his

injury by accident and entitlement to total and permanent

disability for injury to his brain pursuant to Code

§ 65.1-56(18).

                               III.

     Under the former statute, total and permanent disability

benefits may be awarded if the employee proved "the loss of both

. . . legs . . . in the same accident, or an injury for all

practical purposes resulting in total paralysis as determined by

the Commission based on medical evidence."   Code § 65.1-56(18).

The statute further provided that "[i]n construing this section

the permanent loss of use of a member shall be held equivalent

to the loss of such member."   Id.

     Credible evidence supported the commission's finding that

Elgnawey did not suffer a permanent loss of use of his legs.

           The phrases "total and permanent loss" or
           "loss of use" of a leg do not mean that the
           leg is immovable or that it cannot be use[d]

                               - 6 -
           in walking around the house, or even around
           the block. They do mean that the injured
           employee is unable to use it in any
           substantial degree in any gainful
           employment.

Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 857, 80

S.E.2d 537, 541 (1954).

     Elgnawey contends that his disability is far more severe

than the disability that qualified the employee for total and

permanent benefits in Pantry Pride v. Backus, 18 Va. App. 176,

442 S.E.2d 699 (1994).    In Backus, however, the "employee could

not return to work . . . [because she] would have required

transportation to and from work, could not climb stairs, would

need to remain seated and supported, might need to shift

positions every few minutes because of pain, and would require

sedating medication."     Id. at 180, 442 S.E.2d at 701-02.

Moreover, we held that "[t]he evidence of a rated loss of

twenty-five percent of both legs, coupled with the additional

evidence of her incapacity for employment, support[ed] the

commission's finding that the employee is permanently

unemployable as a consequence of her loss of function in both

legs."   Id. at 189, 442 S.E.2d at 702.

     The evidence did not establish that Elgnawey is permanently

unemployable because of the loss of function of his legs.

Indeed, the evidence proved and the commission found that

Elgnawey is able to drive an automobile, has ascended and

descended stairs, walked on the beach while on vacation, and was

                                 - 7 -
able to travel by airplane to Egypt.   Moreover, Elgnawey's wife

testified that his pain has decreased since a morphine pump was

surgically implanted in his back.

     In addition, the rehabilitation specialist testified that,

if disability to Elgnawey's legs were the only disability from

which he suffered, he could be accommodated in a work

environment.   The evidence proved, however, that Elgnawey has

suffered a number of injuries unrelated to his employment,

including two car accidents, two strokes, and a heart attack.

Thus, Dr. White opined that Elgnawey is disabled due to

"multiple etiologies."

     For the foregoing reasons, we affirm the commission's

decision.

                                                   Affirmed.




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