New Energy Bedrooms, Inc v. Dennis K Flinchum

• Court: Court of Appeals of Virginia
• Decided: April 1, 2003
• Docket: 2036023
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Elder and Senior Judge Hodges Argued by teleconference

NEW ENERGY BEDROOMS, INC. AND PACIFIC INDEMNITY COMPANY MEMORANDUM OPINION* BY v. Record No. 2036-02-3 JUDGE WILLIAM H. HODGES APRIL 1, 2003 DENNIS K. FLINCHUM

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Robert C. Baker, Jr. (Dobbs & Baker, on brief), for appellants.

P. Heith Reynolds (Wolfe, Williams & Rutherford, on brief), for appellee.

New Energy Bedrooms, Inc. and its insurer (hereinafter

referred to as "employer") appeal from a decision awarding

medical benefits to Dennis K. Flinchum (claimant). Employer

contends the Workers' Compensation Commission erred in finding

that claimant proved that his claim for depression constituted a

compensable consequence of his February 9, 1999 compensable

injury by accident and, therefore, his February 13, 2001 claim

was timely filed. Finding no error, we affirm the commission's

decision.

[The] doctrine [of compensable consequences], also known as the chain of

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. causation rule, provides that "'where the chain of causation from the original industrial injury to the condition for which compensation is sought is direct, and not interrupted by any intervening cause attributable to the [employee's] own intentional conduct, then the subsequent [condition] should be compensable.'"

Food Distributors v. Estate of Ball, 24 Va. App. 692, 697, 485

S.E.2d 155, 158 (1997) (citation omitted). "The simplest

application of this principle is the rule that all the medical

consequences and sequelae that flow from the primary injury are

compensable." American Filtrona Co. v. Hanford, 16 Va. App.

159, 163, 428 S.E.2d 511, 513 (1993) (citation omitted)

(emphasis added).

On appeal, we view the evidence in the light most favorable

to the prevailing party below. R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence. See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

In ruling that claimant proved his depression was a

compensable consequence of his initial February 9, 1999 injury

by accident, the commission found as follows:

Here, claimant's psychiatric symptoms developed after the work accident, as a consequence of his alleged back and neck injuries and his associated pain and distress. Accordingly, we conclude that the Deputy Commissioner erroneously applied the Supreme Court's holding in Shawley [v. Shea-Ball Constr. Corp., 216 Va. 442, 219 - 2 - S.E.2d 849 (1975)], to the facts of this case, and that the February 13, 2001, claim for emotional dysfunction is not time barred.

Although Dr. [Darrell F.] Powledge concluded that the claimant's depressive neurosis pre-existed the February 9, 1999, injury by accident, the greater weight of the medical evidence is that the claimant's depression and emotional dysfunction relates to the injury by accident as a compensable consequence. In this regard, we rely upon Dr. [Gary M.] Rooker's opinion that the claimant's depressive disorder is related by history to the February 9, 1999, injury by accident, but is not disabling due to the moderate level of his symptoms. The Deputy Commissioner's award will be modified to include medical coverage for the claimant's emotional dysfunction, but no disability will be awarded.

The commission's factual findings are supported by credible

evidence, including Dr. Rooker's medical records and opinions.

"The fact that there is contrary evidence in the record is of no

consequence if there is credible evidence to support the

commission's finding." Wagner Enters., Inc. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). In its role as

fact finder, the commission was entitled to weigh the medical

evidence, to accept Dr. Rooker's opinion, and to reject

Dr. Powledge's opinion. "Questions raised by conflicting

medical opinions must be decided by the commission." Penley v.

Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236

(1989).

- 3 - Because credible evidence supports the commission's finding

that claimant's depression constituted a compensable consequence

of his compensable February 9, 1999 injury by accident, we

affirm the commission's decision that the February 13, 2001

claim was timely filed.

Furthermore, the record shows that employer did not argue

before the commission that claimant's February 13, 2001 claim

could not be considered a change in condition because no prior

award existed. Rather, employer argued that under Shawley there

is no exception for compensable consequences and the claim for

depression constituted a separate injury which had to be filed

within two years of the accident. Thus, we will not consider

employer's argument raised for the first time on appeal that the

claim was time barred because no prior award existed. See Rule

5A:18. In addition, the record establishes that claimant filed

an initial claim for benefits on October 16, 2000, well within

the two-year statute of limitations. He asserted before the

commission that a de facto award existed, and employer, in fact,

stipulated to the entry of an award for the period of September

1, 1999 to April 5, 2000, a period for which employer had

already paid compensation. Therefore, the commission did not

address the issue of whether a prior award existed, and we will

not consider that issue for the first time on appeal.

For these reasons, we affirm the commission's decision.

Affirmed. - 4 -