Debra L. McMenimen v. County of Stafford Fire, etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
DEBRA L. MCMENIMEN
v. Record No. 1863-95-4 MEMORANDUM OPINION *
PER CURIAM
COUNTY OF STAFFORD FIRE & JANUARY 30, 1996
RESCUE EMERGENCY SERVICES
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Michael A. Kernbach; Jack T. Burgess & Associates,
on brief), for appellant.
(John M. Poma; Midkiff & Hiner, on brief), for
appellee.
Debra L. McMenimen ("claimant") contends that the Workers'
Compensation Commission erred in finding she did not prove that
her psychiatric condition was causally related to her February 18,
1992 compensable injury by accident to her right arm. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. Rule 5A:27.
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). "General
principles of workman's compensation law provide that '[i]n an
application for review of any award on the ground of change in
condition, the burden is on the party alleging such change to
*
Pursuant to Code § 17-116.010 this opinion is not designated
for publication.
prove his allegations by a preponderance of the evidence.'" Great
Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d
98, 101 (1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1
Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). Unless we can
say as a matter of law that claimant's evidence sustained her
burden of proof, the commission's findings are binding and
conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va.
697, 699, 173 S.E.2d 833, 835 (1970).
The commission denied claimant's application on the ground
that her evidence failed to prove that her psychiatric condition,
suicide attempts and hospitalizations were causally related to her
work-related injury. In so ruling, the commission found as
follows:
At the hearing, [claimant's] treating
psychiatrist, Dr. Martin H. Stein, changed his
opinion and testified that [claimant's]
chronic pain or reflex sympathetic dystrophy
was the triggering condition which led to her
disabling depression, phobia and self-
destructive behavior. However, on cross-
examination, Dr. Stein stated, "I don't know,
you know, its hard to know what the origin of
the depression is . . . . I told you that's a
hypothesis. I don't know if that is exactly
the answer, okay?" We are not of the opinion
that Dr. Stein opined with a degree of medical
certainty that the etiology of the claimant's
depression was her work-related injury. None
of [claimant's] other physicians have opined
that her psychiatric condition and/or self
destructive behavior was causally related to
her work-related injury.
The medical record establishes a plethora
of other factors which may have contributed to
the claimant's psychiatric problems.
[Claimant] told her medical care professionals
about her perceived harassment prior to her
work injury which, in her opinion, continued
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after her injury. [Claimant] believed the
County was "out to get her." She was afraid
to go anywhere near her office. Additionally
[claimant] believed her ex-husband was trying
to kill her and her child.
These factual findings are consistent with the medical
records, Dr. Stein's testimony, and claimant's testimony, and they
support the commission's decision. In light of Dr. Stein's
uncertainty, the change from his initial opinion concerning
causation, and the numerous other stressors in claimant's life
which may have caused her condition, the commission, in its role
as fact finder, was entitled to give little weight to Dr. Stein's
opinion. Moreover, as the commission correctly noted, none of the
other physicians who examined or treated claimant opined that her
psychiatric condition was caused by her work-related right arm
injury. In fact, several of these physicians indicated that
claimant's psychiatric condition was probably caused by other
factors, including perceived harassment by her supervisor at work.
Based upon the lack of persuasive medical evidence showing a
causal connection between claimant's psychiatric condition and her
work-related injury, we cannot find as a matter of law that
claimant met her burden of proving that her psychiatric condition
was caused by her February 18, 1992 right arm injury.
Accordingly, we affirm the commission's decision.
Affirmed.
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