Maher Elgnawey v. Northern VA Steel Corp. ( 2000 )

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
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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]
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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
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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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