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COMPENSABLE CONSEQUENCES
Once an injury is compensable, the employer is liable for the full extent of the injury: the fact that complications arise or the injury worsens does not alter the compensable nature of the injury. When the primary injury is shown to have arisen out of and in the 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 Service 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)). In other words, where a causal connection between the initial compensable injury and the subsequent injury is established, the doctrine of compensable consequences extends the coverage of the Workers' Compensation Act to the subsequent injury because the subsequent injury is treated as if it occurred in the course of and arising out of the employee's employment. American Filtrona Co. v. Hanford, 16 Va. App. 159, 162-63, 428 S.E.2d 511,513 (1993) (quoting Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 793-94, 407 S.E.2d 1, 3 (1991)).
"'It is well settled that where the construction of a statute has been uniform for many years in administrative practice, and has been acquiesced in by the General Assembly, such construction is entitled to great weight . . . .'" Holly Farms v. Carter, 15 Va. App. 29, 42-43, 422 S.E.2d 165, 172(1992) (quoting Dan River Mills, Inc. v. Unemployment Comm'n, 195 Va. 997, 1002, 81 S.E.2d 620, 623 (1954)). The commission consistently has affirmed its adoption of the chain of causation rule in suicide cases. See, e.g., Ball v. Food Distributors, VWC File No. 144-77-52 (April 16, 1996); Stone v. Formex, Inc., VWC File No. 165-25-59 (May 15, 1996); Wheeler v. Pomalco Corporation, VWC File No. 152-93-29 (October 7, 1992); Confer v. Arban & Carosi, Inc., 63 O.I.C. 66 (1984). Accordingly, the Court of Appeals upheld both the commission's construction of the statute and the rationale of the majority rule. Food Distribs. v. Estate of Ball, 24 Va. App. 692, 697, 485 S.E.2d 155, 158 (1997).
In Virginia, the doctrine of compensable consequences is well established and has been in existence for many years." Williams Indus., Inc. v. Wagoner, 24 Va. App. 181, 186, 480 S.E.2d 788, 790 (1997). This doctrine, also known as the chain of 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 Distribs. v. Estate of Ball, 24 Va. App. 692, 697, 485 S.E.2d 155, 158 (1997) (quoting Leadbetter, Inc. v. Penkalski, 21 Va. App. 427, 432, 464 S.E.2d 554, 556 (1995)). When the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of direct and natural results, and the claimant's own conduct as an independent intervening cause. Williams Indus., Inc., 24 Va. App. at 186, 480 S.E.2d at 790. 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). "[W]here a causal connection between the initial compensable injury and the subsequent injury is established . . . the subsequent injury 'is treated as if it occurred in the course of and arising out of the employee's employment.'" Bartholow Drywall Co. v. Hill, 12 Va. App. 790,794, 407 S.E.2d 1, 3 (1991) (quoting Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 100 (1977)).See Amoco Foam Products Company v. Johnson, Record No. 980139 (Va. Supreme Court, January 8, 1999) WP Version.
Jemmott does not bar compensation for a cumulative trauma injury which is found to be a compensable consequence of an original injury by accident. The commission did not err in refusing to apply the rule set forth in The Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996) (holding that "job-related impairments resulting from cumulative trauma caused by repetitive motion, however labeled or however defined, are, as a matter of law, not compensable under the present provisions of the Act" as injuries by accident or occupational diseases), and Middlekauff v. Allstate Ins. Co., 247 Va. 150, 154, 439 S.E.2d 394, 397 (1994) (reiterating the view that a gradually incurred injury is not an injury by accident within the meaning of the Act) to bar compensation. Nothing in Jemmott expressly overruled or altered the well-established doctrine of compensable consequences. Super Fresh Food Markets, Inc. v. Rejino C. Stultz, Record No. 1276-98-4 (October 6, 1998); Allen & Rocks, Inc. v. Perry Lee Briggs, Record No. 0768-98-3 (December 22, 1998)(knee problems gradually caused by change in gait resulting from compensable back injury are a compensable consequence of the back injury). The Court in Stenrich did not consider whether the rule regarding gradually incurred injuries applies to "chain of causation" or "compensable consequence" injuries. The difference between a primary injury and an injury that is a compensable consequence of the primary injury is significant. Professor Larson explains: "A distinction must be observed between causation rules affecting the primary injury . . . and causation rules that determine how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment. As to the primary injury, it has been shown that the "arising" test is a unique one quite unrelated to common-law principles of legal cause, and . . . the employee's own contributory negligence is ordinarily not an intervening cause preventing initial compensability. But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concept of "direct and natural results," and of claimant's own conduct as an independent intervening cause. The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury. The simplest application of this principle is the rule that all medical consequences and sequelae that flow from the primary injury are compensable.... The first group, about which there is no legal controversy, comprises the cases in which an initial medical condition itself progresses into complications more serious than the original injury; the added complications are of course compensable. . . [O]nce the work-connected character of any injury, such as a back injury, has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause. A. Larson, The Law of Workmen's Compensation, Sec. 13.11, 13.11(a). Allen & Rocks, Inc. v. Perry Lee Briggs, Record No. 0768-98-3 (December 22, 1998) (knee problems gradually caused by change in gait resulting from compensable back injury are a compensable consequence of the back injury).
The doctrine of compensable consequences arose from a line of Supreme Court cases discussing chain of causation principles. In Justice v. Panther Coal Co., 173 Va. 1, 2 S.E.2d 333 (1939), the claimant fractured his pelvis in the course of his employment. While in the hospital for treatment of the compensable injury, the claimant died from acute lobar pneumonia. See id. at 3, 2 S.E.2d at 334. Reversing the commission's denial of benefits, the Court wrote: "Decedent was hale and hearty for several years immediately preceding the accident. He was never sick during this period. After the accident, exposure and operation, he was confined to the hospital where we presume all proper precautions were taken to prevent the onslaught of pneumonia from any source. Notwithstanding these precautions, pneumonia developed in an otherwise apparently vigorous and healthy man within five days from the date of the accident and within three days from the date ether was administered, resulting in death some five days later. In the absence of positive affirmative evidence, tending to establish a break in the chain of causation, the inevitable conclusion from the evidence is that the death of the decedent resulted 'naturally and unavoidably from the accident.'"Id. at 7, 2 S.E.2d at 336 (emphasis added). In Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977), the Court adopted the term "compensable consequences" and provided the following rule: "When a primary injury under the Workmen's Compensation Act is shown to have arisen out of the course of employment, every natural consequence that flows from the injury is compensable if it is a direct and natural result of a primary injury. . . . This doctrine extends the canopy of the Workmen's Compensation Act to the resulting injury. This is so because the second injury is treated as if it occurred in the course of and arising out of the employee's employment." Id. at 214, 237 S.E.2d at 99-100. See also Immer & Co. v. Brosnahan, 207 Va. 720, 727-28, 152 S.E.2d 254, 258-59 (1967) (applying chain of causation rule and awarding compensation benefits for the claimant's injuries sustained in an automobile accident while enroute to a medical provider for treatment of original work-related injury). In Virginia, the doctrine of compensable consequences "is well established and has been in existence for many years." Williams Indus., Inc. v. Wagoner, 24 Va. App. 181, 186, 480 S.E.2d 788, 790 (1997). This doctrine, also known as the chain of 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 Distribs. v. Estate of Ball, 24 Va. App. 692, 697, 485 S.E.2d 155, 158 (1997) (quoting Leadbetter, Inc. v. Penkalski, 21 Va. App. 427, 432, 464 S.E.2d 554, 556 (1995)) (emphasis added). [W]hen the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of direct and natural results, and the claimant's own conduct as an independent intervening cause. Williams Indus., Inc. v. Wagoner, 24 Va. App. at 186, 480 S.E.2d at 790 (citation omitted) (emphasis added). "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). Id. at 273-74, 494 S.E.2d at 172-73. Allen & Rocks, Inc. v. Perry Lee Briggs, Record No. 0768-98-3 (December 22, 1998) (knee problems caused by change in gait resulting from compensable back injury are a compensable consequence of the back injury).
The phrases "chain of causation," "direct and natural results," and "all the medical consequences and sequelae" anticipate the possibility of more than just one event; the doctrine of compensable consequences is not limited to merely one immediate consequence of an industrial injury. Compensable consequences include injuries sustained not as an immediate result of the original injury but as a result of some intermediate event which was itself a result of the original injury. See Immer & Co. v. Brosnahan, 207 Va. 720, 152 S.E.2d 254 (1967) (injuries sustained in car accident while traveling to treatment for original injury are compensable); Food Distribs. v. Estate of Ball, 24 Va. App. 692, 699-700, 485 S.E.2d 155, 159 (1997) (suicide is compensable if the [work-related] injury produces mental derangement and the mental derangement produces suicide); Imperial Trash Serv. v. Dotson, 18 Va. App. 600, 602, 445 S.E.2d 716, 718 (1994) (death was compensable where claimant died as a result of cardiac arrest caused by [work-related] heatstroke); American Filtrona Co. v. Hanford, 16 Va. App. 159, 164, 428 S.E.2d 511, 514 (1993). (employer responsible for costs of hepatitis found to have resulted from a blood transfusion or any other medical treatment necessitated by the original industrial injury). See also Code Sec. 65.2-605 (consequences of treatment provider malpractice are compensable as part of the original injury).
Compensable consequence of a compensable consequence. Contrary to the Court of Appeals' ruling in Amoco Foam Products Company v. Johnson, 26 Va. App.267, 494 S.E.2d 169 (1997), it does not logically follow that merely because a 1994 injury was causally related to a compensable 1992 accident and a 1995 injury was causally related to the 1994 injury, then the 1995 injury was causally related to the 1992 accident. The link of causation must directly connect the original accidental injury with the additional injury for which compensation is sought. Thus, the Court of Appeals erred in holding that claimant's 1995 knee injury was a compensable consequence of her 1992 ankle injury. Based on a record not showing a causal connection between the original 1992 injury and the 1995 injury, a requirement for compensability of the latter injury, the claimant may not recover for a compensable consequence of a compensable consequence. Medical testimony only revealed a causal connection between the 1995 injury and the 1994 compensable consequence, and the original 1992 injury was not an immediate cause of the 1995 injury. Amoco Foam Products Company v. Johnson Medical testimony only revealed a causal connection between the 1995 injury and the 1994 compensable consequence, and the original 1992 injury was not an immediate cause of the 1995 injury. Amoco Foam Products Company v. Johnson Medical testimony only revealed a causal connection between the 1995 injury and the 1994 compensable consequence, and the original 1992 injury was not an immediate cause of the 1995 injury. Amoco Foam Products Company v. Johnson, Record No. 980139 (Va. Supreme Court, January 8, 1999) WP Version..
"When the primary injury is shown to have arisen out of and in the 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)). "In other words, where a causal connection between the initial compensable injury and the subsequent injury is established . . . the subsequent injury is treated as if it occurred in the course of and arising out of the employee's employment." Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 794, 407 S.E.2d 1, 3 (1991) (citations omitted). This reasoning underscores the causal connection between the primary and consequential injuries.
Emotional or psychological conditions resulting from an accidental event are compensable. See E.C. Womack, Inc. v. Ellis, 209 Va. 588, 591-93, 166 S.E.2d 265, 269 (1969); Hercules, Inc. v. Gunther, 13 Va. App. 357, 362, 412 S.E.2d 185, 188 (1991). Despite the provisions of Code Sec. 65.2-306(A)(1) providing in pertinent part that "[n]o compensation shall be awarded to the employee or his dependents for an injury or death caused by: (1) The employee's willful misconduct or intentional self-inflicted injury," the commission has awarded benefits for suicide caused by the compensable accident. See, e.g., Confer v. Arban & Carosi, Inc., 63 O.I.C. 66 (1984) (a case in which the issues were whether decedent's suicide was statutorily barred and whether the suicide was caused by decedent's initial injury.) In Confer, the commission adopted the majority rule: [T]he appropriate test to be adopted in Virginia is that designated as the chain-of-causation rule, wherein where the injury and its consequences directly result in the worker's loss of normal judgment and domination by a disturbance of the mind causing the suicide, his suicide is compensable, with a suicide committed by the worker suffering from this degree of disturbance not to be considered "willful" or an "intentional" injury even though the action is volitional since the suicide relates back to the original injury rather than existing independently of the injury. Id. at 80. Additionally, the commission explained as follows: [W]e agree with the basic tenet behind those cases adhering to the chain of causation, that recent psychiatric advances point to the fact that the consequences of an accidental injury can be so devastating that they influence the employee's mind to the point that the employee understands the consequences of the act of destruction but the employee is unable to resist the impulse to take his own life. Under such circumstances we do not find that the act is independent of the accident nor that it is willful within the meaning of [the statute]." Id. at 80-81.
The commission's findings, based upon Dr. Shield's reports, support the commission's conclusion that claimant's psychological disability was a compensable consequence of his injury by accident. See Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985); Seneca Falls Greenhouse & Nursery v. Layton, 9 Va. App. 482, 485-86, 389 S.E.2d 184, 186-87 (1990).The commission aptly acknowledged and applied the principle that "great weight should be given to the evidence of an attending physician." C.D.S. Constr. Servs. v. Petrock, 218 Va. 1064, 1071, 243 S.E.2d 236, 241 (1978). Citing Dr. Shield's four-year treatment of Slaughter and his extensive reports, the commission found that his opinions and diagnoses were more persuasive than those of Dr. Brown Although there were other stressors in claimant's life, the psychological and medical reports place overwhelming emphasis on the injury of October 1988 as the cause of claimant's depression. Dr. Brown's opinion that the injury at work was merely incidental to a disease which progressed on a natural path leading to his present disability is belied by the evidence that claimant was able to earn a livelihood and be a productive member of society despite his depression and psychosomatic symptoms until he began to unravel after the incident of October 24, 1988, following which he became virtually dysfunctional. Dr. Shield testified that although claimant had psychiatric problems before the 1988 injury, "the October [1988] accident caused his psychiatric decompensation. . . and the disability." Dr. Shield opined that Slaughter's 1988 work injury was a precipitating event of claimant's "decompensation" (defined by Dr. Shield as "just plain fall[ing] apart"). He believed claimant to be a hard-working, motivated individual until the pain from his injury caused his emotional collapse. He described the injury as "the straw that broke the camel's back." Dr. Shield testified that Slaughter "was in a massive, massive emotional decompensation" that was caused by his depression over the pain that resulted from his work-related injury. Bassett Burkeville Veneer v. Richard Raymond Slaughter, Jr., 21 Va. App. 575, 466 S.E.2d 127 (1996), Record No. 2212-94-3 (January 30, 1996).
Aggravation of pre-existing psychological problems. The commission properly applied the doctrine of compensable consequences to a pre-existing mental or emotional condition or illness and awarded temporary total benefits.
Claimant was employed as a freight clerk for employer. She fell and dislocated her right ulna, fractured her right radius and hurt her right breast, both knees and right ankle. The parties stipulated the injury was compensable.
Shortly after the accident, claimant saw her psychiatrist, Dr. Carl V. Hunt. Claimant had been seeing Dr. Hunt "on and off" for two years prior to the injury. Claimant acknowledged that she suffered from depression prior to the injury and that she was on medication prescribed by Dr. Hunt at the time of the accident. However, she testified the injury and her efforts to continue in her regular position increased her stress. She could not sleep and was irritable. She felt depressed because she was unable to work in the same manner as before the accident and she was in constant pain. "I couldn't believe all this was happening and there was nothing nobody [sic] could do for me." On May 9, 2000, Dr. Hunt took claimant out of work. He stated: Because of her recent injury, her physical ability to carry out her work responsibilities has been significantly impaired. This is causing her excessive stress and is resulting in a disturbance of sleep and increasing irritability. I do not believe she is mentally able to function at work at this time. Her ongoing treatment with Dr. Hunt was conducted through weekly telephone calls. Employer presented no medical evidence to contradict this opinion.
The commission found that the claimant proved a causal connection between her need for psychiatric treatment and the accident. Although she may have suffered preexisting psychiatric problems, the record established that her condition deteriorated after the accident and that her psychiatrist linked this condition to the accident.
The law is clear that "[w]hen an injury sustained in an industrial accident accelerates or aggravates a pre-existing condition . . . disability resulting therefrom is compensable under the Workers' Compensation Act." Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363, 373 S.E.2d 725, 726 (1988) (citing Ohio Valley Construction Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985)), see also Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 170-71, 543 S.E.2d 619, 623 (2001). In Bassett Burkeville Veneer v. Slaughter, 21 Va. App. 575, 466 S.E.2d 127 (1996), the court implicitly recognized the compensability of an aggravation of an underlying mental condition. In Seneca Falls Greenhouse and Nursery v. Layton, 9 Va. App. 482, 389 S.E.2d 184 (1990), the court stated "Emotional harm following physical injury is compensable, even when the physical injury does not directly cause the emotional consequence." Id. at 486, 389 S.E.2d at 187.
In the instant case, claimant admitted she suffered from depression and had treated with Dr. Hunt for two years prior to her work-related injury. During that two-year period she was working without problems. Claimant attempted to return to her pre-injury job soon after her injury and had difficulty performing her duties. She became irritable, could not sleep and felt overwhelmed by the injury and her inability to do her job. Relying on the medical testimony of Dr. Hunt as well as the claimant's testimony, the commission found, "[t]he psychological impact of the claimant's injury has been significant, as evidenced by her severe levels of depression and irritability. Although she had been treated for these conditions before her work accident, her symptoms became more severe and disabling following her injury." Credible evidence supports this finding and, thus, the commission did not err in determining that claimant's pre-existing emotional or mental condition was aggravated by the April 7, 2000 compensable accident.
It is well settled that "purely psychological disability resulting from disagreements over managerial decisions and conflicts with supervisory personnel that cause stressful consequences ordinarily are not compensable." Teasley v. Montgomery Ward & Co., 14 Va. App. 45, 49, 415 S.E.2d 596, 598 (1992). However, claimant's testimony, and the opinion of Dr. Hunt that the workplace injury was the cause of her deteriorating mental condition, support the commission's finding that claimant's injury, and her inability to perform her work as she had prior to the accident, were the causes of her stress and anxiety rather than tension between herself and her supervisor. Yellow Freight Systems, Inc. v. Sharon Robinson, Record No. 0870-01-4 (February 5, 2002). WP Version.The commission did not err in finding that claimant's psychological problems were caused by her compensable accident. Although one psychiatrist believed claimant's psychological problems preexisted and in fact caused her injury, another psychiatrist who had seen claimant not long after her accident believed her complaints and the clinical findings are quite consistent with a post traumatic stress disorder coupled with a paranoid personality and that claimant's psychological decomposition was set in motion by the injury. The "question [of causation] raised by 'conflicting expert medical opinions' is one of fact." Eccon Constr. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799 (1981). Thus, the commission's "finding upon conflicting medical evidence that a certain condition does or does not exist is . . . a conclusive finding of fact." McPeak v. P.W.& W. Coal Co., 210 Va. 185, 188, 169 S.E.2d 443, 445 (1969). "The deference that we give to the commission's fact finding on medical questions is based upon the 'unwisdom of an attempt by . . . [courts] uninitiated into the mysteries [of the medical science debate] to choose between conflicting expert medical opinions.'" Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872, 874 (1992) (citation omitted). Given these principles of appellate review, we have held that "[t]he commission's findings are binding even if the weight of the evidence is contrary to those findings." Kane Plumbing v. Small, 7 Va. App. 132, 136, 371 S.E.2d 828, 831 (1988). We apply this standard because "[a] greater number of medical opinions does not necessarily constitute a preponderance of the evidence." Island Creek Coal Co. v. Honaker, 9 Va. App. 336, 339, 388 S.E.2d 271, 273 (1990). "The probative weight to be accorded [medical] evidence is for the Commission to decide; and if it is in conflict with other medical evidence, the Commission is free to adopt that view 'which is most consistent with reason and justice.'" C.D.S. Const. Services v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236, 240 (1978). Georgia-Pacific Corporation v. Michalene L. Robinson, Record No. 1644-99-2 (March 21, 2000). WP Version.
The evidence did not support the finding that claimant's psychiatric treatment was causally related to his work injury. "If the expert medical witnesses cannot testify that it is at least more probable than not that the disease arose out of and in the course of employment, compensation must and should be denied, not because the law requires more of medicine than it can produce, but because the law requires more than simply proof that the disease 'might' have been caused by a particular result." Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 224, 372 S.E.2d 411, 416 (1988).
In their concluding opinions, both doctors indicated they needed additional medical history before rendering an opinion on the relation of the psychiatric condition to the injury. The commission erred in finding the medical evidence credible when it lacked a sufficient base. Clinchfield Coal Co. v. Bowman, 229 Va. 249, 252, 329 S.E.2d 15, 16 (1985), held the commission erred in attributing weight to medical evidence based upon a faulty premise. The Court reversed the commission's finding that the doctor was credible because the doctor's opinion was based on erroneous information supplied by the claimant. "In Dr. McIlwain's first report, he assumed that the condition he discovered resulted from the 1978 accident. The basis for this assumption was the incomplete information furnished by Bowman." Id. at 251-52, 329 S.E.2d at 16 (emphasis in original). "Whenever a physician's diagnosis flows from an assumption that rests upon a faulty premise, such as misinformation provided by a claimant, the commission may refuse, and often will be required to refuse, to attribute any weight to that opinion." Sneed v. Morengo, Inc., 19 Va. App. 199, 205, 450 S.E.2d 167, 171 (1994) (citation omitted). The doctors' reports were insufficient to establish a causal connection between the employee's work injury and his psychiatric condition beyond mere conjecture. Howell Metal Company v. Michael B. Adams, Record No. 1992-00-3 (March 27, 2001). WP Version.A claimant's proof of the required causal connection must go beyond mere conjecture. Southall v. Eldridge Reams, Inc., 198 Va. 545, 548, 95 S.E.2d 145, 147 (1956)."Possibility is not enough," when proving causation. Eccon Company v. Lucas, 221 Va. 786, 791, 273 S.E.2d 797, 799 (1981); Rust Engineering Co. v. Ramsey, 194 Va. 975, 76 S.E.2d 195 (1953); Wellmore Coal Corporation v. Dallas E. McClanahan, Record No. 1922-98-3 (March 16, 1999). WP Version.
Evidence in the record was sufficient to prove that claimant's 1993 compensable back injury caused the current condition suffered by the claimant. The claimant's symptoms were in the same locations as the symptoms from the original injury, his symptoms persisted to the present, and he remained under the same doctor's treatment since 1993. The commission had awarded the claimant temporary total disability awards through June 16, 1996, thereby establishing the causal relationship at least through that date. There was no evidence of any new specific intervening injury. Although claimant's doctor gave an affirmative response to a question asking whether he agreed that it was just as probable the L5 disc rupture was caused by cumulative or specific events at his new employment as attributable to the 1993 work accident, the doctor also stated, "Patient current complaints are related to 3-29-93 injury." Other notes refer to the new herniation as a "recurrent L5 disc herniation." Wellmore Coal Corporation v. Dallas E. McClanahan, Record No. 1922-98-3 (March 16, 1999). WP Version.
The commission did not err in finding that claimant proved that his current psychiatric condition and disability constituted a compensable consequence of his January 15, 1997 industrial accident and April 1997 re-injury. It is well settled that when an injury by accident accelerates or aggravates a pre-existing condition, disability resulting therefrom is compensable. See Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). Likewise, when a compensable injury by accident aggravates or contributes to a pre-existing psychological condition, the subsequent "[e]motional harm following physical injury is compensable, even when the physical injury does not directly cause the emotional consequence." Seneca Falls Greenhouse & Nursery v. Layton, 9 Va. App. 482, 486, 389 S.E.2d 184, 187 (1990). Claimant suffered psychological problems of depression and anxiety prior to the work-related accident, but his mental condition had not affected his ability to work. Although claimant left work after an argument with his supervisor, the medical records indicate that his mental instability causing him to leave work was from the residuals of the original work injury and subsequent aggravations. Volvo Cars of North America v. A. Altizer, Record No. 1329-99-3 (October 19, 1999). WP Version.
The Workers' Compensation Commission did not err in awarding benefits to claimant for aggravation of an earlier compensable knee injury. On August 14, 1998, while working at the Central Virginia Training Center, claimant injured her left knee when she caught a falling patient. See was diagnosed with a symptomatic plica, chondromalacia of the patella, a lateral patellofemoral compression syndrome and a medial meniscal tear. On September 28, 1998 she was released to regular work. Claimant stated that her knee was much better at that time and denied any giving way or buckling. Nevertheless, she continued to experience some discomfort. Her last medical treatment for that injury was in December, 1998 or January, 1999.
On October 21, 1999, claimant's knee popped and buckled as she carried a mop and bucket up a stairway. She fell to the floor. She went to the emergency room and returned to her initial physician's care. She described the pain as different from the pain she had experienced in August, 1998. Although it was in the same location, it was more severe, and she was unable to walk. Her soctor diagnosed left knee patellofemoral chondromalacia and bilateral patellofemoral compression syndrome. He reported that "[the] event that she describes from October 21, 1999 did cause an aggravation of her previous left knee injury. It was not a new diagnosis, but it was a new event." On December 21, 1999, he returned claimant to medium work with restrictions.
On January 12, 2000, after the employer denied her benefits, claimant stopped treating with her first doctori. She began seeing a new doctor, whom she chose from a panel of physicians furnished by the employer. Her new doctor agreed with her first doctor's diagnosis. On April 6, 2000, he placed claimant on restricted duty.
An MRI revealed a torn medial meniscus and the absence of an anterior cruciate ligament. Her new doctor concluded that arthroscopic surgery would be appropriate, but actual reconstruction would not be necessary. Claimant was removed from work from May 4, 2000 to May 25, 2000. A second opinion was requested by the employer, and claimant was examined by Dr. John A. Cardea on June 16, 2000. Dr. Cardea agreed with her new doctor's diagnosis. He reported that claimant's "medial meniscus problem [relates] to the initial injury. . . . [T]his is an exacerbation of a pre-existing condition or it may even be the first symptoms of a pre-existing condition."
Following the October 21, 1999 injury, claimant filed for temporary total disability benefits, claiming (1) that she had suffered a compensable change in condition of the August 14, 1998 injury; or, in the alternative (2) that she had suffered a new compensable injury on October 21, 1999.
When an employee files a change of condition application seeking reinstatement of disability benefits, two questions arise: (1) has there been a change in the employee's capacity to work; [and] (2) if so, is the change due to a condition causally connected with the injury originally compensated. King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984). Unquestionably, her capacity to work changed as a result of the October, 1999 injury. On April 6, 2000, she was placed on restricted work duty, and was removed from work duty for the period of May 4 to May 25, 2000. The issue is whether this disability was causally connected to her original compensable injury.
When a primary injury . . . is shown to have arisen out of the course of employment, every natural consequence that flows from the injury is compensable if it is a direct and natural result of a primary injury. Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 99 (1977). Credible evidence supports the commission's finding that claimant's disability following the October, 1999 injury was a natural consequence flowing from her compensable August, 1998 injury. Claimant had no knee problems prior to the August, 1998 accident. Following the completion of treatment for that injury, she continued to have pain in her knee when climbing stairs or when standing for long periods. Her first doctor stated unequivocally that the October, 1999 incident was an aggravation of her original injury. An independent medical examiner selected by the employer, wrote that her pain flared when she returned to full duty work and that "this is an exacerbation of a pre-existing condition or it may even be the first symptoms of a pre-existing condition." These facts viewed as a whole support the determination that the October, 1999 incident was an aggravation of her 1998 injury. CW/Central VA Training Center v. Dorothy M. Cordle, Record No. 0458-01-2 (December 12, 2001) WP Version.The commission did not err in ruling that the aggravation of claimant's compensable injury to his hand was compensable because employer gave claimant work that required him to exceed his work restrictions, even though claimant willfully violated his work restrictions by performing that work.
Claimant, who worked for employer as a painter, suffered a compensable injury to his left thumb on June 9, 2000, while lifting a piece of scaffolding. He went to Patient First on June 12, 2000, where he was examined by Dr. G. Clifford Walton. Dr. Walton diagnosed a finger sprain. He limited claimant to light-duty work with no lifting with the left hand. When claimant returned for a follow-up examination on June 19, 2000, Dr. Walton took him out of work and referred him to Dr. Keith A. Glowacki, a hand specialist.
Dr. Glowacki examined claimant on June 20, 2000. He diagnosed a left thumb radial collateral ligament tear and placed claimant's left hand in a cast. Dr. Glowacki noted in his report that claimant would "have no use of that hand at work" for three to four weeks. He further estimated in a patient work status report dated June 20, 2000, that claimant would not have full use of his left hand for six weeks and indicated in the "work limitations" portion of that report that claimant was to have "no use of injured hand." Dr. Glowacki emphasized in the "comments" section of that report that claimant was to have "[a]bsolutely no use whatsoever of [left] hand!"
Employer, although notified of claimant's restrictions, sent claimant to an airport work site, where claimant was given the job of painting baseboards on the outside of a building. The nature of the airport job required him to repeatedly lift a gallon of paint with his left hand. Claimant's assignment at the airport job lasted two days. then sent claimant to a work site at an apartment complex. Terry testified he again told claimant's supervisor to let claimant do only low work. Initially, claimant was given the job of painting several seven-foot-tall windows. When the windows were completed, claimant's supervisor had him paint a deck, which required him to lift and climb a sixteen-foot ladder. Claimant testified he was unable to lift and climb the ladder and paint the deck without using his left hand. Claimant further stated that, when he climbed the ladder, he had to temporarily remove a brace that had been prescribed by Dr. Glowacki for his left hand, because he was afraid he would fall off the ladder if he did not. Claimant also testified his supervisor saw him lift and climb the ladder using his left hand and remove his brace, but the supervisor did not tell claimant not to use his left hand. According to claimant, his supervisor told him he had to lift the ladder. Claimant did not ask anyone to help him. He complained to a co-worker that the work he was being given violated the work
restrictions imposed by his doctor.
When claimant returned for a follow-up visit on August 18, 2000, Dr. Glowacki reported as follows: Despite conservative treatment, [claimant] is failing with continued use of his hand at work given the option of only two-handed type of work. It is impossible without use of your thumb to do heavy lifting of a ladder. . . . Presently he is a danger to himself and his coworkers if he continues to lift ladders, climb ladders and do heavier type activity. Unfortunately I believe all this is moot as he is failing conservative treatment and likely is made worse by using his hand. I told him that we'll have to get an MRI to evaluate this area and probably have to perform surgery at this point. . . . We will see him back after the MRI regarding the surgical treatment.
Dr. Glowacki further noted in a patient work status report dated August 18, 2000, that claimant's injury was work related and that he did not know when claimant might return to work with full use of both hands. Dr. Glowacki also indicated in the "work limitations" portion of that report that claimant was to have "no use of injured hand" and added in the "comments" section that surgery would probably be necessary "due to [claimant's] constant using of hand."
Claimant continued working for employer through September 21, 2000, doing such work as painting offices with eight-foot-high ceilings, the outside of condominiums, the outside of a shed, the outside of houses, and the outside of a church. According to claimant, his work included carrying forty-foot ladders and climbing ladders to the second floor of houses. Claimant left employer in September to work for another painting company because he "did not feel good" and employer did not give him his normal hours due to his hurt hand. In his new job, as a supervisor, he did not lift or climb ladders or otherwise use his left hand when painting. He left that job three months later because his thumb and the cold weather were "bothering [him] too much."
To prevail on his claim, claimant had to prove by a preponderance of the evidence that the disability for which he sought compensation was causally related to his June 9, 2000 compensable injury. See King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984); Rosello v. K-Mart Corp., 15 Va. App. 333, 335, 423 S.E.2d 214, 216 (1992). The commission's determination of causation is a finding of fact. American Filtrona Co. v. Hanford, 16 Va. App. 159, 165, 428 S.E.2d 511, 515 (1993). "If there is evidence, or reasonable inferences can be drawn from the evidence, to support the commission's findings, they will not be disturbed on review, even though there is evidence in the record to support a contrary finding." Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).
It is well settled in Virginia that an employee is entitled to receive compensation for the subsequent aggravation of a compensable injury if that aggravation is directly connected to the employee's original compensable injury by a chain of causation uninterrupted by "'an independent intervening cause attributable to [the employee's] own intentional conduct.'" Leadbetter, Inc. v. Penkalski, 21 Va. App. 427, 432, 464 S.E.2d 554, 556 (1995) (quoting 1 Arthur Larson, The Law of Workmen's Compensation Sec. 13.00 (1994)). On the record of this case, claimant's performance of work that required him to exceed his work restrictions did not constitute an "independent" intervening cause. Employer knew the work it was giving claimant required him to exceed his work restrictions, and employer should have reasonably known that such work would predictably result in the aggravation of claimant's original compensable injury. Accordingly, claimant's conduct did not break the chain of causation directly connecting his compensable injury and the continuing aggravation of that injury.
The continuing aggravation of claimant's original compensable injury was a result employer "should have reasonably expected." It was the predictable consequence of employer's giving claimant work beyond his work restrictions. Thus, having knowingly given claimant work that required him to exceed his work restrictions and that could reasonably be anticipated to result in the aggravation of claimant's compensable injury, employer may not escape having to pay for claimant's compensation benefits for an aggravation caused by such work simply by blaming claimant for engaging in work beyond his restrictions. Employer must bear the responsibility of having knowingly given claimant work that required him to exceed his doctor's work restrictions. S. P. Terry Company, Inc. v. Jorge Rubinos, Record No. 2470-01-2 (August 13, 2002). WP Version.Legal Summaries Contents Home Page Contents