Bassett Burkeville, etc. v. Richard R. Slaughter Jr , 21 Va. App. 575 ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Overton
Argued at Salem, Virginia
BASSETT BURKEVILLE VENEER and
LIBERTY MUTUAL FIRE INSURANCE COMPANY
OPINION BY
v. Record No. 2212-94-3 JUDGE JAMES W. BENTON, JR.
JANUARY 30, 1996
RICHARD RAYMOND SLAUGHTER, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James C. Joyce, Jr. (Monica L. Taylor;
Gentry, Locke, Rakes & Moore, on briefs),
for appellant.
James B. Feinman (James B. Feinman &
Associates, on brief), for appellee.
Bassett Burkeville Veneer contends that the Workers'
Compensation Commission erred in finding (1) that Raymond Richard
Slaughter, Jr.'s work injury caused his psychological disorder
and (2) that Slaughter received treatment from authorized
physicians. Finding no error, we affirm the commission.
I.
The evidence proved that on October 24, 1988, Slaughter
suffered a cartilage tear in his chest while he was employed by
Bassett. Slaughter immediately reported his injury to a
supervisor, who directed an employee to drive Slaughter to Dr.
Ralph Godsey's office. Slaughter received a pain killer from Dr.
Godsey and returned to work within a day or two of his injury.
Slaughter testified that he was in pain every day and could not
perform any lifting.
On April 7, 1989, Slaughter lost consciousness while driving
home from work. He was taken to a hospital emergency room and
then to Johnston-Willis Hospital where he stayed for nine days.
While Slaughter was being treated for chest pain, his physician
requested Dr. James A. Shield, Jr., a psychiatrist, to see
Slaughter. During his initial examination of Slaughter in April
1989, Dr. Shield found Slaughter to be "massively depressed" with
a history of chest pain complaints, and he recommended
psychiatric treatment. Slaughter then was transferred to the
psychiatric section at Chippenham Medical Center. He remained in
the psychiatric section of the hospital for fifty-six days and
received treatment from Dr. Shield. Since his release from the
hospital's psychiatric section, Slaughter has been admitted to
the hospital seven other times due to his psychiatric illness.
Dr. Shield diagnosed Slaughter as suffering from major
depression and severe chest pain. He described Slaughter as
"totally controlled by his pain syndrome . . . [and] total[ly]
dysfunctional." In diagnosing Slaughter and investigating the
cause of Slaughter's disorder, Dr. Shield learned of Slaughter's
past medical problems. Dr. Shield opined that Slaughter's 1988
work injury was a precipitating event of Slaughter's
"decompensation" (defined by Dr. Shield as "just plain fall[ing]
apart"). He believed Slaughter 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
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massive, massive emotional decompensation" that was caused by his
depression over the pain that resulted from his work-related
injury.
At the request of the employer, another psychiatrist, Dr.
Robert S. Brown, Jr., interviewed Slaughter. He also reviewed
Slaughter's medical, employment, and school records. Dr. Brown
diagnosed Slaughter as suffering from somatoform pain disorder
that began in the early 1980s. He reported that Slaughter's
work-related injury was only incidental to his psychological
problems and that Slaughter falsely attributed his depression and
disorder to the work injury.
II.
The deputy commissioner found that "[t]he experts' positions
differ significantly only in that Dr. Shield opines that
Slaughter's psychological disorder is causally related to his
injury by accident on October 24, 1988; Dr. Brown opines that
Slaughter's psychological disorder is not causally related to the
same incident." Citing Dr. Brown's opinion that Slaughter
falsely attributed his disorder to the work-related injury, the
deputy commissioner ruled that Slaughter's psychological problems
were not causally related to Slaughter's injury and denied any
award for Slaughter's psychological problems. The deputy
commissioner awarded Slaughter medical benefits only for
treatment of the physical injury to his chest.
On review, the commission ruled that Dr. Shield was an
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authorized treating physician. Based on its analysis of the
extensive psychological evidence, the commission found that
Slaughter's work-related injury caused the psychological
problems. 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 and
therefore awarded Slaughter compensation for psychological
injuries.
III.
If a compensable work-related injury occurs and "no panel of
physicians is offered to the employee, he or she is free to
select his own physician." Goodyear Tire & Rubber Co. v. Pierce,
9 Va. App. 120, 128, 384 S.E.2d 333, 337-38 (1989). The
uncontradicted evidence in the record establishes that Slaughter
was not offered a panel of physicians. Moreover, we agree with
the commission's ruling that the effect of Bassett's denial that
a compensable injury occurred required Slaughter to seek and pay
for his own medical care. Id. at 128, 384 S.E.2d at 338. When
Bassett denied liability, Slaughter "was entitled to choose his
own physician." Id. at 129, 384 S.E.2d at 338. Therefore, the
commission properly ruled that Dr. Wittkamp and Dr. Shield were
authorized treating physicians. See id. at 130, 384 S.E.2d at
339.
IV.
The commission's findings of fact, when supported by
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credible evidence, are binding on appeal. Code § 65.2-706(A);
Fairfax Hosp. v. DeLaFleur, 221 Va. 406, 410, 270 S.E.2d 720, 722
(1980). In awarding Slaughter compensation for psychological
injuries, the commission found "Dr. Shield's opinions to be
reasonable and consistent with the medical records." The
commission also found that "Dr. Shield was intimately involved
with [Slaughter's] treatment since April of 1989," that Dr.
Shield consulted with numerous experts, and that Dr. Shield had
considered his patient's medical history. When we examine the
evidence in the light most favorable to Slaughter, the prevailing
party below, Odom v. Red Lobster, 20 Va. App. 228, 233, 456
S.E.2d 140, 142 (1995), we conclude that the commission's
decision is supported by credible evidence.
As the deputy commissioner noted, "[b]oth Dr. Shield and Dr.
Brown testified eloquently and at length regarding Slaughter's
psychological disorders" and they only "differed in subtle ways
in their diagnoses." Dr. Shield diagnosed Slaughter as having
psychogenic pain syndrome, major depression, and dysthymic
disorder. Dr. Shield testified that he had "no objection" to Dr.
Brown's diagnosis that Slaughter had somatoform pain disorder.
He further testified
Well, I never diagnosed him as having that,
and it's not in my records, you won't find it
anywhere there. I have no disagreement with
it because I was treating Mr. Slaughter for
his depressive decompensation more than
anything else, as a result of his pain
syndrome. And I wasn't necessarily sending
anybody a bill for treatment of somatoform
pain syndrome, I was sending a bill for
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treating the devastating depressions that I
think were secondary to that. I think the
somatoform pain disorder is a good
description, and I think dysthymic disorder,
he's got in his report, is a good
description, I think he left out the major
depressive episode diagnosis that
precipitated his hospitalizations. And so I
have no diagnostic arguments.
In addition, however, Dr. Shield's testified that although
Slaughter had psychiatric problems before the 1988 injury, "the
October [1988] accident caused his psychiatric decompensation
. . . and the disability." Dr. Shield acknowledged that his
opinion regarding causation differed from Dr. Brown's opinion.
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). The commission made the
following findings that are well supported by credible evidence:
Although Dr. Brown worked over 100 hours
developing his opinion in this case, Dr.
Shield has been formulating his opinion on
the basis of 4 years of personal treatment
and with consultation of other medical
experts. . . . We find Dr. Shield's opinions
to be reasonable and consistent with the
medical records, and they are more persuasive
in this case. Although the employer argues
that there were other stressors in
[Slaughter's] life, the psychological and
medical reports place overwhelming emphasis
on the injury of October 1988 as the cause of
[Slaughter'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
[Slaughter] was able to earn a livelihood and
be a productive member of society despite his
depression and psychosomatic symptoms until
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he began to unravel after the incident of
October 24, 1988, following which he became
virtually dysfunctional.
The commission's findings, based upon Dr. Shield's reports,
support the commission's conclusion that Slaughter'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).
For these reasons, we affirm the commission's award.
Affirmed.
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