Barnett v. D.L. Bromwell, Inc.

• Decision Date: 15 March 1988
• Docket Number: No. 1033-86-4,1033-86-4
• Citation: 6 Va.App. 30,366 S.E.2d 271
• Parties: Harlene H. BARNETT v. D.L. BROMWELL, INC., et al. Record
• Court: Virginia Court of Appeals

Page 271

366 S.E.2d 271

6 Va.App. 30

Harlene H. BARNETT v. D.L. BROMWELL, INC., et al.

Record No. 1033-86-4.

Court of Appeals of Virginia.

March 15, 1988.

Michael W. Heaviside (Ashcraft & Gerel, Alexandria, on brief), for appellant.

Benjamin J. Trichilo (Lewis, Tydings, Bryan & Trichilo, Fairfax, on brief), for appellees.

Present: KOONTZ, C.J., and BARROW, BENTON, COLE, COLEMAN, DUFF, HODGES, KEENAN and MOON, JJ.

OPINION ON REHEARING EN BANC

KOONTZ, Chief Judge.

On rehearing en banc, Harlene H. Barnett appeals from a decision of the Industrial Commission denying her total and permanent benefits for a work related injury to the brain and subsequently sustained by a panel of this court in Barnett v. D.L. Bromwell, 4 Va.App. 552, 358 S.E.2d 767 (1987). For the reasons that follow, we reverse the decision of the commission. Specifically, we hold that the evidence established that Mrs. Barnett's work related brain injury resulted in "incurable imbecility" as contemplated by Code § 65.1-56(18).

The pertinent facts are not in dispute. At the time of Mrs. Barnett's injury on March 3, 1980, she was employed as a part-time sales person of fireplaces and fireplace equipment. She sustained a serious head injury and was rendered unconscious for about three hours when struck on the head by a fireplace door. Following her hospitalization, she was diagnosed by Dr. Charles Carroll, a neurosurgeon, as having a cerebral concussion, subarchnoid hemorrhage, chin laceration and left cheek contusion. Within a week of her discharge from the hospital on March 12, 1980, Mrs. Barnett began having difficulty expressing herself and remembering words. Her condition continued to deteriorate and on October 7, 1980, based on a memorandum agreement entered into by the parties, she began receiving temporary total disability benefits.

On December 30, 1985, she filed for total and permanent disability under Code § 65.1-56(18) which provides:

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, to be compensated according to the provisions of § 65.1-54 (emphasis added).

Between the date of the injury and hearing before the commission, Mrs. Barnett was examined and treated by a number of medical professionals. The record supports the findings of the deputy commissioner that Mrs. Barnett suffers from permanent expressive aphasia (loss of power of spoken or written expression), dyslexia (inability to read understandingly), dysgraphia (inability to write), and hemi-hypoesthesis (abnormally decreased acuteness of sensation on one side of the body). A series of tests indicated that Mrs. Barnett's intelligence quotient (I.Q.) was 85 in 1982 and 96 in 1985. Dr. Allan Becker noted that this improvement "should not be overemphasized and it is actually less than the (test) scores make it appear." He further noted that the increase was "not highly significant with regard to how it affects her daily living...."

The record further supports the findings of the deputy commissioner that these conditions limit those things which Mrs. Barnett can do since the accident to: dressing herself, performing bathroom functions, cleaning house, cooking by rote, watching television and performing one-step tasks such as raking leaves. She is unable to drive, write a coherent sentence, remember numbers with more than three digits, write checks accurately, help her eighth grade child with homework, remember her doctors' names, follow a three-stage command, interpret paragraphs, follow test instructions, write sentences from dictation, follow a recipe or dial a telephone.

The deputy commissioner found and the commission affirmed that the evidence established that Mrs. Barnett suffered permanent irreversible brain damage which has seriously reduced her capacity to engage in many usual cognitive processes and that the degree of reduction of her mental capacities renders her permanently unemployable. The record clearly supports these findings.

The commission then found that "[T]he statutory level of incapacity which qualifies a worker for total and permanent benefits is that level of reduced mental capacity which meets an accepted definition of incurable imbecility" contained in Code § 65.1-56(18). The medical professionals testified that the former medical classification of morons, imbeciles and idiots was obsolete and had not been used in diagnosing mental disorders for approximately twenty-five years. The commission acknowledged the term "imbecility" is outdated, but, nevertheless, referred to Dorland's Medical Dictionary (25th ed.), as establishing that a category of imbecile is one which characterizes lack of mental development and is framed by I.Q. between 25 and 49. The commission further referred to a definition of imbecility found in Random House Dictionary of the English Language (1966 ed.): defective mentality in one lacking the capacity to develop beyond the mental age of seven or eight years. Based on these two definitions, the commission held that Mrs. Barnett's reduced capacity does not conform to the statutory requirement of incurable imbecility. We disagree.

The purpose of the Workers' Compensation Act is to provide compensation to an employee for the loss of his opportunity to engage in work, when his disability is occasioned by an injury suffered from an accident arising out of and in the course of his employment. Burlington Mills Corp. v. Hagood, 177 Va. 204, 211, 13 S.E.2d 291, 293 (1941). The Act should be liberally construed in harmony with its humane purpose. See generally Barker v. Appalachian Power Co., 209 Va. 162, 163 S.E.2d 311 (1968); Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 28 S.E.2d 725 (1944).

In the context of statutory construction, the employer in this case correctly refers to the following principle:

When the legislature has spoken plainly it is not the function of courts to change or amend its enactments under the guise of construing them. The province of construction is wholly within the domain of ambiguity, and that which is plain needs no interpretation.

Winston v. City of Richmond, 196 Va. 403, 407-08, 83 S.E.2d 728, 731 (1954).

The employer argues that "imbecile" has a well-defined and accepted meaning; that it refers to a form of mental retardation which is a medical term measured by I.Q. Since mental retardation is now characterized by an I.Q. of 69 or lower on the Wechsler I.Q. scale and "imbecile" was formerly a particularly severe form of mental retardation characterized by an I.Q. of 20-49, the employer argues that Mrs. Bromwell does not fall within the statutory definition of an imbecile.

The term "imbecile" is not defined within the statute nor have the appellate courts of this Commonwealth been called upon to construe its meaning. "It is a well established rule of construction that a statute ought to be interpreted in such a manner that it may have effect, and not found to be vain and elusive. Every interpretation that leads to an absurdity ought to be rejected. It is our duty to give effect to the wording of the statute, and allow the legislative...