Dinwiddie Custodial v. Lois J Ferrell ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia
DINWIDDIE (COUNTY OF) CUSTODIAL AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION * BY
v. Record No. 1518-02-2 JUDGE D. ARTHUR KELSEY
FEBRUARY 11, 2003
LOIS J. FERRELL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (Michael P. Del Bueno;
Whitt & Associates, on briefs), for
appellants.
B. Mayes Marks, Jr. (Marks and Williams,
P.C., on brief), for appellee.
The Workers' Compensation Commission awarded Lois Ferrell
benefits for physical and psychological injuries arising as a
compensable consequence of an earlier injury by accident. On
appeal, the employer and its insurance carrier claim Ferrell's
psychological injuries cannot be fairly traced to her injury by
accident. Finding that the commission's causation ruling rests
on credible evidence, we affirm.
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
On appeal, "we view the evidence in the light most
favorable to the prevailing party" before the commission. Tomes
v. James City (County Of) Fire, 39 Va. App. 424, 429, 573 S.E.2d
312, 315 (2002); Grayson County Sch. Bd. v. Cornett, 39 Va. App.
279, 281, 572 S.E.2d 505, 506 (2002).
In 1990, Ferrell's abusive husband held Ferrell, her
daughter, and her grandchildren hostage at gunpoint. Ferrell's
daughter struggled with him and, in the process, fatally shot him.
Despite witnessing this traumatic event, for the next ten years
Ferrell led a "relatively normal lifestyle." She remained
consistently employed and did not seek out or receive any
psychological treatment.
In 2000, Ferrell worked for Dinwiddie County as a custodian
at the Dinwiddie Courthouse. On April 26, 2000, she was buffing a
floor in the courthouse when the buffer "jerked and swung her into
a wall and a table countertop striking her right side." As a
result, Ferrell sustained an injury to her neck and right arm.
The parties stipulated that Ferrell's physical injuries were
compensable.
The physical injuries caused Ferrell to be out of work until
June 29, 2000, and resulted in continuing treatment by various
physicians through at least May 2001. During that time she
underwent surgery for a "significant lunotriquetral ligament tear"
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in her right wrist and received continuing pain management for an
unresolving neck sprain and myofascial pain.
On July 20, 2000, Ferrell's treating physician, Dr. Kathryn
Holloway, noticed that Ferrell appeared very depressed. She
referred Ferrell to Dr. P. Jagan Reddy, a psychiatrist. On August
9, Dr. James Carr, an orthopedic physician treating Ferrell's
wrist injury, also "noted that her post-injury treatment was
complicated by her depression."
Ferrell consulted Dr. Reddy on August 21, 2000. Dr. Reddy
diagnosed Ferrell "as suffering from major depression and
post-traumatic stress disorder [PTSD] as a result of the
compensable injury." Dr. Reddy noted that Ferrell "was having
problems dealing with the pain from her injury, she was not
sleeping well and she had no money to support herself." Ferrell
was also having "anxiety attacks" and was "losing control of [her]
bladder." Dr. Reddy took Ferrell off light duty status,
recommending that she not work in any capacity.
On August 21, 2000, Dr. Reddy admitted Ferrell to Poplar
Springs Hospital for major depression and severe PTSD. Poplar
Springs discharged Ferrell on September 8, 2000, and Dr. Reddy
continued treating Ferrell through at least June 2001. Dr. Reddy
has "never released her to work in any capacity."
Based on continuing complaints of pain, in April 2001,
Ferrell was referred to Dr. Daniel C. Martin, an anesthesiologist
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who practices "interventional pain management." Dr. Martin
diagnosed Ferrell with "chronic pain syndrome, sympathetically
maintained pain of the right upper extremity and depression." He
testified that Ferrell not only has "anatomically correct
complaints, but she also has multiple other confounding
psychological problems that would make her response to even
appropriate therapy indiscernible or not discernable to the
patient."
Ferrell filed her initial claim for benefits with the
commission on August 1, 2000. She later withdrew her claim,
resulting in a dismissal without prejudice. On February 8, 2001,
Ferrell filed an "Application for Hearing/Claim for Benefits" with
the commission, but this application, likewise, was dismissed
without prejudice when the employer submitted forms agreeing to
pay temporary total and partial disability payments. In April
2001, Dinwiddie filed an application for hearing alleging that
Ferrell "failed to cooperate with vocational rehabilitation
efforts" relating to her physical injuries and requesting that the
commission "adjudicate the issue of whether Ferrell's alleged
psychological disability was causally related to her April 26,
2000 incident." The matter was heard by the deputy commissioner
on September 5, 2001.
Dr. Reddy testified by deposition that he was aware of the
hostage incident and shooting death of Ferrell's husband ten years
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earlier and he "admitted that such a trauma could certainly
produce post-traumatic stress disorder." He attributed her
current condition, however, to the April 26 accident stating "that
the significance of any event and its effect on a person is
dictated by their action after the event." He noted that Ferrell
"spent nearly eleven years" after the hostage incident "conducting
a relatively normal lifestyle." Dr. Reddy concluded "that there
had to be a triggering event that caused her major depression and
post-traumatic stress disorder and he stated that for the claimant
the triggering event was the injury on April 26, 2000."
On August 13, 2001, at her employer's request, Ferrell
submitted to a psychiatric examination by Dr. Daniel E. Knowler.
Dr. Knowler found Ferrell to have "significant symptoms of a
depressive illness" and stated that the "traumatic nightmares and
memories that were stirred would have appropriately been diagnosed
as a PTSD with delayed onset." Though Dr. Knowler did not think
that the PTSD revealed symptoms "from the recent injuring event,"
he concluded that "the injuries sustained by Mrs. Ferrell set off
a cascade of events that have led to her current depressive
symptoms."
The deputy commissioner found these causation opinions of
Dr. Reddy and Dr. Knowler to be credible and persuasive. Noting
the axiom that "the employer takes the employee as it finds her,"
see Williams Indus., Inc. v. Wagoner, 24 Va. App. 181, 187-88, 480
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S.E.2d 788, 791 (1997), the deputy commissioner concluded that the
injury on April 26, 2000, "'triggered,' 'set off a cascade of
events,' 'contributed,' or 'caused' the claimant's psychological
problems." The full commission concurred with this finding and
affirmed the award for permanent, partial disability and medical
benefits for Ferrell's PTSD and depression.
II.
On appeal, we defer to the commission in its role as fact
finder. VFP, Inc. v. Shepherd, 39 Va. App. 289, 292, 572 S.E.2d
510, 511-12 (2002). If supported by credible evidence, the
commission's factual findings are "binding on appeal," Tomes, 39
Va. App. at 430, 573 S.E.2d at 315 (citation omitted), "even
though there is evidence in the record to support a contrary
finding." S.P. Terry Co., Inc. v. Rubinos, 38 Va. App. 624,
632, 567 S.E.2d 584, 588 (2002).
When "determining whether credible evidence exists," we
cannot "retry the facts, reweigh the preponderance of the
evidence, or make [our] own determination of the credibility of
the witnesses." Wagner Enters. v. Brooks, 12 Va. App. 890, 894,
407 S.E.2d 32, 35 (1991). In addition, the commission's
"conclusions upon conflicting inferences, legitimately drawn
from proven facts, are equally binding on appeal." Watkins v.
Halco Eng'g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).
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Absent the need for statutory interpretation or other
exposition of legal principle, the "actual determination of
causation" constitutes a finding of fact. K&G Abatement Co. v.
Keil, 38 Va. App. 744, 756-57, 568 S.E.2d 416, 422 (2002) (quoting
Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814,
817 (1989)) (internal quotations omitted). This is particularly
true when the commission's opinion rests on the results of a
medical diagnosis. See, e.g., Caskey v. Dan River Mills, Inc.,
225 Va. 405, 411, 302 S.E.2d 507, 510 (1983).
III.
A.
In its opening brief, Dinwiddie devotes much of its argument
to the assertion that "there is no credible evidence that Ferrell
suffers from PTSD" and that the facts "do not support the
diagnosis of PTSD." At oral argument, however, Dinwiddie withdrew
this contention and challenged only the sufficiency of the
commission's finding of causation.
To be compensable, a psychological injury must be "causally
related to a physical injury or to a sudden shock or fright
arising in the course of employment." Owens v. Virginia Dept. of
Transp., 30 Va. App. 85, 88, 515 S.E.2d 348, 349 (1999); see also
Anthony v. Fairfax County Dept. of Family, 36 Va. App. 98, 548
S.E.2d 273 (2001). Under the compensable consequences doctrine,
when the "primary injury is shown to have arisen out of and in the
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course of employment, every natural consequence that flows from
the injury likewise arises out of the employment, unless it is the
result of an independent intervening cause attributable to
claimant's own intentional conduct." Imperial Trash Serv. v.
Dotson, 18 Va. App. 600, 606-07, 445 S.E.2d 716, 720 (1994)
(quoting Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App.
276, 283, 348 S.E.2d 876, 879 (1986)) (internal quotations marks
omitted). The issue "is essentially one of whether the medical
evidence proves a causal connection between the primary injury and
the subsequent occurrence." Williams Indus., Inc., 24 Va. App.
at 188, 480 S.E.2d at 791; see also Leonard v. Arnold, 218 Va.
210, 214, 237 S.E.2d 97, 100 (1977). 1
In this case, Dinwiddie focuses on the PTSD condition and
largely overlooks the parallel evidence demonstrating Ferrell's
major depression diagnosis. Though closely related, however,
major depression and PTSD represent clinically different
psychiatric diagnoses.
Three physicians treating Ferrell's physical injuries
(Dr. Holloway, Dr. Carr, and Dr. Martin) noted Ferrell's
1
"Where a psychological injury is at issue, the fact that
the condition manifests itself symptomatically at a time later
than that at which the causative incident occurred is of no
moment, provided that circumstances show an 'identifiable
incident [occurring] at a reasonably definite time' which causes
the emotional injury." Hercules, Inc. v. Gunther, 13 Va. App.
357, 364, 412 S.E.2d 185, 189 (1991) (quoting Morris v. Morris,
238 Va. 578, 589, 385 S.E.2d 858, 865 (1989)).
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depression. Both Ferrell's treating psychiatrist as well as the
psychiatrist hired by the appellants (Dr. Reddy and Dr. Knowler)
observed her to have "significant symptoms" of "major depression."
These medical opinions cannot be dismissed as "inherently
incredible" or "inconsistent with other facts in the record."
Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185,
187 (1991).
On the causation issue, Dr. Reddy and Dr. Knowler both linked
Ferrell's depression to her physical injuries and, by extension,
to the April 26, 2000 accident. Dr. Reddy stated that the
accident was the "triggering event that caused her major
depression," while Dr. Knowler stated that the injuries Ferrell
suffered in the accident "set off a cascade of events that have
led to her current depressive symptoms."
With respect to the PTSD diagnosis, Dr. Knowler agreed that
the "traumatic nightmares and memories that were stirred would
have appropriately been diagnosed as a PTSD with delayed onset."
Dr. Reddy addressed the causation issue, finding that Ferrell
suffered from PTSD "as a result of the compensable injury" and
that the injury "triggered" the PTSD. Accepting this opinion, the
commission held: "It is clear that the injury of April 26, 2000,
was the triggering event which caused and/or contributed to the
claimant's psychological problems."
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Viewed in the light most favorable to Ferrell, credible
evidence supports the commission's finding that Ferrell suffers
both from major depression and PTSD —— two related, but distinct,
compensable consequences caused by the April 26, 2000 accident.
B.
Ferrell requests that we award attorney fees to her under
Code § 65.2-713(A), which grants us the authority to assess
against Dinwiddie "the whole cost" of these proceedings "including
a reasonable attorney's fee" if we find that these "proceedings
have been brought, prosecuted, or defended without reasonable
grounds." See, e.g., Lowes of Short Pump Virginia v. Campbell, 38
Va. App. 55, 62, 561 S.E.2d 757, 760 (2002) (awarding fees against
employer for appealing "without reasonable grounds"). The actual
calculation of such costs, if awarded, should be "fixed by the
Commission." Code § 65.2-713(A).
We find this an appropriate case for a partial award of costs
and fees. A significant portion of Dinwiddie's brief contested
the legitimacy of Dr. Reddy's diagnosis of PTSD. In its opening
brief, however, Dinwiddie failed to mention that the physician it
hired to perform an independent medical exam, Dr. Knowler, agreed
with Dr. Reddy's PTSD diagnosis. Though Dinwiddie rightly
conceded away this issue at oral argument, the concession came too
late to save Ferrell the costs of briefing the issue and preparing
to refute it at oral argument. On the question whether credible
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facts support Ferrell's PTSD diagnosis, we hold that Dinwiddie
challenged the commission's findings on appeal without reasonable
grounds. We remand this matter to the commission to assess a fair
proportion of Ferrell's costs and fees, related to the PTSD
diagnosis issue, against Dinwiddie pursuant to Code § 65.2-713(A).
IV.
In sum, credible evidence supports the commission's factual
findings in this case. We thus affirm the commission and remand
for assessment of costs and reasonable attorney's fees.
Affirmed.
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