Daniel Construction Co. v. Tolley

480 S.E.2d 145, 24 Va. App. 70, 1997 Va. App. LEXIS 43
CourtCourt of Appeals of Virginia
DecidedJanuary 28, 1997
Docket1332963
StatusPublished
Cited by19 cases

This text of 480 S.E.2d 145 (Daniel Construction Co. v. Tolley) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daniel Construction Co. v. Tolley, 480 S.E.2d 145, 24 Va. App. 70, 1997 Va. App. LEXIS 43 (Va. Ct. App. 1997).

Opinion

*73 ELDER, Judge.

Daniel Construction Company (appellant) appeals from a decision of the Workers’ Compensation Commission (commission) awarding permanent total disability benefits to Wesley A. Tolley (claimant). Appellant contends (1) that the commission erred when it ruled that a claimant need only prove that he or she suffers from a psychiatric condition in order to qualify for permanent total disability benefits under former Code § 65.1-56(18).; (2) that the evidence was insufficient to prove that claimant suffered an injury to the brain; and (3) that the deputy commissioner abused his discretion when he refused to allow appellant to submit a post-hearing report from its expert. For the reasons that follow, we affirm.

I.

FACTS

Claimant, a former concrete plant worker, suffered a trauma-related psychological injury on August 31, 1982 when an unannounced explosion of 100 pounds of dynamite startled him while he was unloading concrete in a mine shaft. As a result of this accident, claimant has suffered from post-traumatic stress disorder, anxiety disorder, panic disorder, and depression. The commission awarded temporary total disability benefits that expired after 500 weeks in March, 1992. On February 8, 1995, claimant filed an application for permanent total disability benefits, alleging that his accident in 1982 had caused an irreversible injury to his brain that rendered him permanently unemployable.

A hearing was held before a deputy commissioner on July 7, 1995. At the hearing, claimant and his wife testified in detail regarding how claimant’s injury has adversely impacted the non-vocational quality of his life and severely limited his ability to engage in many usual cognitive processes, such as working, socializing, driving, and engaging in an equal and intimate marital relationship.

*74 The medical evidence introduced at the hearing consisted of (1) claimant’s medical records dating from 1972, (2) a report by claimant’s treating physician, Dr. Michael Hoffman, dated January 23,1995, and (3) a report by appellant’s expert, Dr. C. Robert Showalter, dated June 30, 1995. The medical records indicated that after his accident, claimant has consistently been diagnosed as suffering from post-traumatic stress disorder and, with some variation, either anxiety disorder, panic disorder, or depression. In his report, Dr. Hoffman reviewed his observations and treatment of claimant since 1987 and opined that claimant suffered from an incurable psychological disease that has resulted in his permanent unemployability. Dr. Showalter’s report stated that after examining claimant once, he concluded that claimant suffered no organic brain deterioration and no irreversible brain injury and that claimant possesses the ability to carry out some level of minimally stressful, gainful employment.

Following the hearing, the deputy commissioner held open the record so that appellant could take a previously scheduled deposition of Dr. Hoffman that had been thwarted when Dr. Hoffman was detained by local floods. The record was also held open to provide Dr. Hoffman the opportunity to respond to Dr. Showalter’s report, which was not received by claimant until two days before the hearing. After the hearing, appellant declined to depose Dr. Hoffman and requested either that the record be closed or that Dr. Showalter be permitted to respond to any subsequent report accepted by the deputy commissioner from Dr. Hoffman. Claimant objected and requested the deputy commissioner to allow Dr. Hoffman to file a report in response to Dr. Showalter’s and to then close the record. The deputy commissioner ruled that he would close the record after accepting a subsequent report from Dr. Hoffman but not from Dr. Showalter. Appellant objected to this ruling.

A second report by Dr. Hoffman was filed on September 6. In this report, Dr. Hoffman responded to the conclusions of Dr. Showalter. He stated that claimant had been consistently diagnosed with post-traumatic stress disorder resulting from *75 his accident and that this psychological disease has manifestations that make it an irreversible brain injury. Dr. Hoffman described the physical injury to claimant’s brain:

“[Claimant] suffered a traumatic experience that directly resulted in a neurochemical imbalance in his central nervous system. These are changes that occur at a cellular level and are entirely beyond the patient’s control. It is shown throughout the medical literature that post-traumatic responses often manifest themselves in neurochemical changes in the brain. Recent evidence from the National Institute of Mental Health shows specific structural changes within the neurons that is permanent and irreversible. Damage is done to neurosynaptic receptors and serotinergic neurotransmitters which frequently are extremely difficult to treat.... I reluctantly believe this is exactly what happened in this case.”

On September 29, the deputy commissioner awarded permanent total disability benefits to claimant. He stated that claimant’s case was governed by former Code § 65.1-56(18) and found that claimant was permanently unemployable and that his injury had taken away some of his “broad range of ‘usual’ cognitive processes.”

Appellant appealed the decision of the deputy commissioner and the commission affirmed. The commission held that under the definition of “injury” set forth in both former Code § 65.2-101 and Burlington Mills Corp. v. Hagood, 177 Va. 204, 13 S.E.2d 291 (1941), an “injury to the brain” includes “a brain injury that manifests itself through a psychiatric condition.” Relying on Dr. Hoffman’s reports, the commission found that claimant had proved that he suffered from both a brain injury that manifested itself through a psychiatric condition and an actual physical injury to the brain.

II.

TOTAL PERMANENT BENEFITS UNDER FORMER CODE § 65.1-56(18)

Appellant contends that the commission erred when it concluded that a claimant need only prove that he suffers from a *76 psychiatric condition in order to qualify for permanent total disability benefits under former Code § 65.1-56(18) and when it found that claimant had suffered a physical injury to his brain. We disagree.

Under the former version of the Workers’ Compensation Act (Act), Code § 65.1-56(18) provided an exception to the general rule that benefits for compensable injuries had definite time limits. See Code § 65.1-54. Under former Code § 65.1-56(18), benefits continued “for the lifetime of the injured employee without limit as to total amount,” if the employee suffered inter alia from “an injury to the brain resulting in incurable imbecility or insanity.” Code §§ 65.1— 54, 65.1-56(18). In Barnett v. D.L. Bromwell, Inc., 6 Va.App. 30, 36, 366 S.E.2d 271

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Bluebook (online)
480 S.E.2d 145, 24 Va. App. 70, 1997 Va. App. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-construction-co-v-tolley-vactapp-1997.