Anthony v. Fairfax County Department of Family Services ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia
LUCY SHARON MAE ANTHONY
OPINION BY
v. Record No. 2938-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JULY 3, 2001
FAIRFAX COUNTY DEPARTMENT OF
FAMILY SERVICES AND FAIRFAX COUNTY
BOARD OF SUPERVISORS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Andrew S. Kasmer (Chasen & Boscolo, on
brief), for appellant.
James E. Wilcox, Jr., Assistant County
Attorney (David P. Bobzien, County Attorney;
Robert Lyndon Howell, Deputy County Attorney,
on brief), for appellees.
Lucy Sharon Mae Anthony ("claimant") appeals the Workers'
Compensation Commission's ("commission") decision denying her
benefits for post-traumatic stress disorder ("PTSD"), allegedly
caused by two distinct confrontations with different clients.
The commission held that claimant failed to prove the
confrontations gave rise to a compensable psychological injury
by accident. The commission found that the confrontations were
neither unexpected in claimant's line of work nor so dramatic or
frightening as to shock the conscience. We agree with the
commission's ruling and affirm the decision.
I.
Claimant was a social worker for Fairfax County Department
of Family Services ("employer"). Her job duties included field
contacts with clients and the implementation of court orders.
She testified that her clients were located in "areas [that
were] . . . low class, like drug areas." She also described her
clients as "[p]arents who have alcohol and drug problems.
Parents with mental health problems, mentally retarded. Parents
who, basically, have problems with the court in terms of abusing
their children."
On July 15, 1998, claimant conducted a home visit to
discuss a client's non-compliance with a court order. The
client became angry, pulled claimant from the chair by her arm
and threw her out of the house. Claimant injured her right
shoulder and arm. She missed a few days of work and sought
medical treatment with Dr. Dean Bennett. An award for benefits
was entered on her behalf, and she was paid accordingly.
On May 28, 1999, claimant went to a day care center to take
emergency custody of two children. As claimant approached the
door to the day care center, the mother and grandmother of the
children ran up behind her, pushed her out of their way and
caused her to fall from the porch. Claimant testified she had
soreness in her previously injured right shoulder and arm as a
result. She did not miss any time from work and required no new
medical treatment as a result of this confrontation.
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On December 10, 1999, claimant filed a claim for benefits.
She alleged she suffered additional injuries to her neck and
right shoulder, as a result of the July 15, 1998 confrontation,
and new injuries to her right arm, shoulder and neck as a result
of the May 28, 1999 confrontation. Additionally, she alleged
she suffered psychological injuries as a result of the
confrontations.
At hearing, claimant testified she was "terrified" when the
mother and grandmother of the children pushed her aside in May
1999 and that she became "more afraid to go out in the field"
after the May 1999 incident. The incident affected her
relationships with other staff members. She rarely attended
staff meetings and believed her co-workers were talking about
her. She felt her temperament changed and she was more angry.
She lost weight and had trouble sleeping. As a result of these
problems, she sought help through the Employee Assistance
Program and was referred to psychologist, Dr. John Zager, PhD,
for counseling. He diagnosed PTSD with delayed onset as a
result of the two assaults.
On January 10, 2000, at the request of employer, Dr. Brian
Schulman, a psychiatrist, conducted a psychiatric evaluation of
claimant. In his report, Dr. Schulman concluded that claimant
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suffered from major depression, with the onset possibly
precipitated by the incident of July 1998. 1 He opined
[there was] no evidence of Posttraumatic
Stress Disorder (PTSD). Ms. Anthony was an
experienced social worker, who was
accustomed to making home visits to troubled
households. Although she was surprised by
being grabbed by her client in July, 1998
this was not a life threatening or dangerous
event (simply being abruptly pushed out of
client's home). Although frightening and
unpleasant, it did not reach the threshold
of a traumatic stressor associated with
PTSD. Further, she did not develop signs of
psychic numbing, hypervigilance, heightened
startle response, and/or chronic
revivifications.
The deputy commissioner found that while claimant did not
suffer any new physical injuries in the May 28, 1999 incident,
it caused her PTSD. Employer appealed and on review, the full
commission reversed, stating:
[W]e cannot conclude that, under these
circumstances, the claimant suffered an
"obvious sudden shock or fright," . . . .
Although the claimant here feared that the
women who ran past her and grabbed the
children may have been armed, and that her
life was in danger, we find this situation
more closely resembles the facts in Owens
[v. Va. Dept. of Transportation, 30 Va. App.
85, 515 S.E.2d 348 (1999),] where the
claimant's perception of his danger exceeded
his actual peril. Furthermore, the claimant
1
Employer failed to provide Dr. Schulman's report to
claimant or disclose his appearance as a witness until the day
before the hearing. Claimant objected to the report and
testimony, but the deputy commissioner allowed the evidence.
Claimant did not appeal this issue to the full commission. She
argues this issue was preserved by counsel's objection at
hearing. After review of the record, we find the claimant
failed to preserve this issue and it is barred by Rule 5A:18.
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acknowledged that "quite often people are
very upset when you come to remove their
children," and that it was not unusual for
her to encounter anger and profanity in the
course of her employment. We certainly
recognize the anxiety experienced by the
claimant, and that she may have briefly
feared for her personal safety, but we
conclude that the facts of this case do not
support the compensability of the claim.
Although we agree that the claimant could
not have reasonably expected to be assaulted
in the course of her employment by the two
women, we cannot conclude that the
precipitating event was shocking or
catastrophic, or so dramatic or frightening
as to shock the conscience.
Claimant appeals the commission's decision.
II.
Claimant contends the commission lacked credible evidence
to support its finding that her PTSD was not related to the
second assault.
On appeal, factual findings of the commission will not be
disturbed if based on credible evidence. Morris v. Badger
Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d
876, 877 (1986). Whether credible evidence exists to support a
factual finding is a question of law which is properly
reviewable on appeal. See Ablola v. Holland Rd. Auto Ctr.,
Ltd., 11 Va. App. 181, 183, 397 S.E.2d 541, 542 (1990).
Causation is a factual determination to be made by the
commission, but the standards required to prove causation and
whether the evidence is sufficient to meet those standards are
legal issues which we must determine. Morris v. Morris, 238 Va.
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578, 385 S.E.2d 858 (1989). In determining whether credible
evidence exists to support the necessary factual findings, we
view the evidence in the light most favorable to the party
prevailing below. Crisp v. Brown's Tysons Corner Dodge, Inc., 1
Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
In the instant case, claimant suffered no physical injury
as a result of the May 1999 confrontation. She did suffer
physical injuries in the July 1998 confrontation, but her
psychological injury did not stem from that incident. 2 "To
qualify as a compensable injury by accident, a purely
psychological injury must be causally related to a . . . sudden
shock or fright arising in the course of employment." Owens, 30
Va. App. at 88, 515 S.E.2d at 349 (citing Chesterfield County
Fire Dep't v. Dunn, 9 Va. App. 475, 477, 389 S.E.2d 180, 182
(1990); Burlington Mills Corp. v. Hagood, 177 Va. 204, 209-11,
13 S.E.2d 291, 293-94 (1941)).
Claimant testified she was "terrified" when the women
pushed her off the porch. However, she also testified she
regularly met with angry clients in "low-class areas" and was an
experienced social worker. Beginning with Hagood, the types of
precipitating events that give rise to purely psychological
compensable injuries are consistently described as shocking,
2
The deputy commissioner ruled claimant's PTSD was a result
of the May 1999 confrontation and claimant did not suffer any
physical injury as a result of the May 1999 confrontation. This
decision was not appealed to the full commission.
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frightening, traumatic, catastrophic and unexpected. See
Hagood, 177 Va. 204, 13 S.E.2d 291 (electric flash and noise
similar to a shotgun blast deemed sufficient); see also Daniel
Const. Co. v. Tolley, 24 Va. App. 70, 480 S.E.2d 145 (1997) (the
explosion of 100 pounds of dynamite without warning while the
employee was unloading concrete in a mine shaft nearby deemed
sufficient); Hercules, Inc. v. Gunther, 13 Va. App. 357, 412
S.E.2d 185 (1991) (an explosion that killed two people and threw
the employee in the air deemed sufficient); Dunn, 9 Va. App. at
477, 389 S.E.2d at 182 (the death of a severely burned patient
cared for by an EMT deemed insufficient).
Dr. Schulman, when testifying about his diagnosis of major
depression rather than PTSD, stated:
[T]he condition of the original trauma
didn't measure up to the criteria described
in the latest diagnostic and statistical
manual of mental disorders, in that the
trauma must be trauma, it can not [sic] be
just stress. The world is filled with all
types of daily stresses. The traumatic
event has to be life threatening, has to be
of a catastrophic - - - potentially
catastrophic nature; it has to cause intense
amount of biologic reactivity.
In his response to employer's question regarding what types of
events meet the criteria, Dr. Schulman responded:
[L]ife threatening events, being held
hostage, being held at gunpoint, being
subject to some unexpected catastrophe like
a severe automobile accident, a plane crash.
And the word unexpected is very important
because in the normal range of our
activities, we kind of expect certain things
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to happen. And I felt that one of the
factors in Ms. Anthony's case that mitigated
against PTSD as a diagnosis, is that what
happened to her was not out of the range of
experience of a social worker in Child
Protective Services. You go into that
situation with the anticipation that these
are problematic situations, potentially
aggressive situations, and Ms. Anthony,
indeed, had been with Child Protective
Services for some nine years. So that when
an individual has an expectation of certain
things occurring, it mitigates against the
development of a PTSD reaction, which is,
indeed, the reaction to something unexpected
happening - - - something terrifying
happening. When one looks at the event in
isolation, it is unfortunate and obviously
stressful, but not, as I previously stated,
traumatic - - - particularly for somebody
who works in that context daily.
The commission determined that confrontations with angry
parents, even limited physical confrontations, were not unusual
occurrences in claimant's work environment or so frightening,
catastrophic or shocking as to support a compensable PTSD
injury. Claimant admitted her work environment required contact
with angry, confrontational parents. Thus, credible evidence
supports the commission's determination that the facts of the
May, 1999 incident did not rise to the level of the type of
sudden shock or fright from which a compensable injury may
arise.
Finding no error in the commission's decision, we affirm.
Affirmed.
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