Dinwiddie Custodial v. Lois J Ferrell

• Court: Court of Appeals of Virginia
• Decided: February 11, 2003
• Docket: 1518022
• Status: Unpublished

Opinion

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"

- 2 - 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

- 3 - 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

- 4 - 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

- 5 - 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).

- 6 - 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

- 7 - 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)).

- 8 - 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."

- 9 - 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

- 1 0 - 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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