CHARLESTON, W.Va. -- Two and half years after a drunk driver hit him on Capitol Street, B.J. Berkhouse is getting around with the help of a walker.

But like many with traumatic brain injury (TBI), Berkhouse says he still can't do simple chores. The former SkyWest customer service representative also suffered facial fractures and a stroke. He lives with his brother's family in Sissonville.

"I still need somebody to do little things like laundry, carrying stuff, cooking," said Berkhouse, who didn't have health insurance when he was hit. 

For years, the state's services for people with TBI have been the subject of legal battles, with advocates saying West Virginia must do more.

In 2009, the state Department of Health and Human Resources appealed a Kanawha County judge's orders to improve TBI services. Now, the state Supreme Court is set to hear arguments on the appeal Tuesday.

Judge Duke Bloom had ordered DHHR to apply for a federal Medicaid waiver for people with TBI. A waiver program lets people get services -- such as physical therapy and visits from health aides -- in their homes and communities, rather than being institutionalized.

Bloom also ordered the department to seek funding from the state Legislature for TBI services. The judge's orders were part of an ongoing case over the state's services for people with mental health issues.

In both 2001 and 2007, DHHR agreed to apply for a TBI waiver, but didn't follow through.

About 25 states have Medicaid waiver programs for TBI.

Car accidents and falls most commonly cause traumatic brain injury. Many military personnel are also returning home with TBI.

"The bulk of the people who get hurt are 15- to 24-year-old males," said Mike Davis, president of the Brain Injury Association of West Virginia.

Those who don't have insurance must rely on Medicaid, he said.

Despite appealing Bloom's order, DHHR did apply for a Medicaid federal waiver.  

DHHR spokesman John Law said the department is waiting for federal approval of the waiver application. He said he couldn't comment in detail about the pending litigation.

Among other arguments, DHHR says in legal filings that that Bloom's orders violated the state constitution's separation of powers doctrine. The department also says TBI victims can find services through other Medicaid programs.

Brain injuries can range in severity. They can cause depression, personality changes, memory loss, blurred vision, speech problems and loss of coordination.

Many who suffer the injury can't do routine tasks, said Ginger Dearth, chairwoman of the West Virginia Traumatic Brain/Spinal Cord Injury Rehabilitation Fund Board, which has operated without state funding for more than five years.

"Sometimes it can be as simple as going to the grocery store and not being able to pay the cashier," she said. "Sometimes they'll drive somewhere and they can't remember how to get home."

A waiver program would help people get critical services, she said.

"A lot of these patients would end up in a skilled nursing facility because that's the only place they're able to receive these services," she said. "Most of the time, if you walk into a nursing home and ask for anyone under the age of 50, they probably have a traumatic brain injury and no insurance."

It is a struggle for many families to care for loved ones with TBI, Dearth said.

Some people don't have family that can take care of them, said lawyer Jennifer Wagner of Mountain State Justice, which represents petitioners in the case.

"That's exactly where this waiver would be able to step in -- where there aren't other resources," Wagner said.

Reach Alison Knezevich at alis...@wvgazette.com or 304-348-1240.