Linda L. Hill v. Travelodge and Selective Ins. Co ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia
LINDA L. HILL
MEMORANDUM OPINION * BY
v. Record No. 0653-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 28, 1999
TRAVELODGE AND
SELECTIVE INSURANCE COMPANY
OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gregory O. Harbison (Geoffrey R. McDonald;
Jeremy C. Sharp; Geoffrey R. McDonald &
Associates, on briefs), for appellant.
S. Vernon Priddy, III (William B. Judkins;
Sands, Anderson, Marks & Miller, on brief),
for appellees.
In this workers' compensation case, Linda L. Hill
(claimant) appeals the commission's decision denying her
benefits for post-traumatic stress disorder (PTSD). The
commission held that claimant's PTSD was not a compensable
psychological injury because she failed to prove either (1) it
was "causally related to an obvious sudden shock or fright"; or
(2) it was a compensable occupational disease. On appeal,
claimant contends the evidence was insufficient to support the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
commission's findings. We disagree and affirm the commission's
decision.
I.
Claimant, a supervisor of housekeeping for Travelodge
(employer), testified that on August 11, 1997 she suffered a
psychological injury after being trapped in an elevator for
approximately two hours with a co-worker, Pamela Gregory.
Claimant described the incident as follows:
All of a sudden it just stopped, . . . I
said Pam, something's wrong, and she said
yeah, this thing's stuck. By that time both
of us had really started sweating because
there was only a light on in there. We
started pushing the button, the emergency
button. I guess about five or ten minutes
later we heard Alice Sose calling to us
asking us was we all right, and we kept
telling her to get somebody to get us out.
I guess maybe five or ten minutes later we
could hear sirens coming. I guess over a
period of time the fire department came in
and they did something, and they jarred the
door open a little bit, and they put a fan
up so we could get some air. . . . While we
was in there, we were basically just shocked
that something like this had actually
happened and we couldn't get out without
anyone coming to get us out.
While in the elevator, Gregory passed out. With help from the
fire department, claimant revived Gregory by administering
oxygen and using smelling salts. The two women were stuck in
the elevator "a little over two hours."
Claimant described her condition as follows: "I felt like
my flesh was crawling. . . . I just felt like I was losing
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control of my feelings of everything. I just felt loss, numb.
I felt sick to my stomach. I just felt scared." At home,
claimant experienced "anxiety attacks" and nightmares about
being "closed in somewhere."
Claimant treated with Dr. Nicolas Emiliani, a psychiatrist
who diagnosed claimant's condition as "an acute Post Traumatic
Stress Disorder . . . after she was trapped in an elevator for 2
hours." On April 3, 1998, Dr. Emiliani signed a disability
certificate stating that claimant was totally incapacitated
beginning August 11, 1997, with an unknown recovery date. At
the hearing, claimant admitted that she had a history of
depression beginning in 1981 and that she previously treated
with Dr. Emiliani and Dr. A.W. Durrani, a general practitioner.
Claimant was hospitalized on at least three occasions due to
severe stress and depression.
The evidence also established that claimant's father died
July 30, 1997 and that she was off work until August 10, 1997.
Don Harrington, claimant's supervisor, testified that claimant
asked for additional time from work because of "the stresses
placed on her by her family." Diana Wright, another co-worker,
testified that when claimant returned to work on August 11,
1997, claimant "said she was under a lot of stress. . . . She
didn't say from what, but she said her doctor said she was under
a lot of stress, and I knew she had just came back because her
father died." Wright was present when claimant was freed from
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the elevator and overhead claimant state that "she was going to
sue."
The commission held that claimant's PTSD was not a
compensable psychological injury, stating the following:
While we recognize the discomfort and
anxiety experienced, we do not find that the
event can be characterized as unexpected,
shocking, or catastrophic. . . . The
claimant does not suffer from claustrophobia
and did not require any immediate medical
treatment after the incident. Moreover,
witness testimony casts some doubt on her
alleged sudden mental deterioration after
the event. Despite Dr. Emiliani's diagnosis
of post-traumatic stress disorder, we do not
find that the incident was so dramatic or
frightening as to be shocking.
Noting that claimant had a "long-term history of psychological
problems," the commission also concluded that she did not suffer
from an occupational disease causally related to her employment.
Accordingly, the commission denied compensation benefits.
II.
On appellate review, we view the evidence in the light
most favorable to the prevailing party below. See Falls Church
Constr. Corp. v. Valle, 21 Va. App. 351, 359, 464 S.E.2d 517,
522 (1995) (citations omitted). "In determining whether
credible evidence exists, the appellate court does not retry the
facts, reweigh the preponderance of the evidence, or make its
own determination of the credibility of the witnesses." Id.(quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894,
407 S.E.2d 32, 35 (1991)). Unless we can determine that Hill
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proved as a matter of law that she sustained a compensable
injury, the commission's contrary finding is binding. See Owens
v. Virginia Dept. of Transp., 30 Va. App. 85, 87, 515 S.E.2d
348, 349 (1999).
"To qualify as a compensable injury by accident, a purely
psychological injury must be causally related to a physical
injury or to a sudden shock or fright arising in the course of
employment." Id. at 88, 515 S.E.2d at 349 (citing Chesterfield
County Fire Dept. v. Dunn, 9 Va. App. 475, 477, 389 S.E.2d 180,
182 (1990) (citing Burlington Mills Corp. v. Hagood, 177 Va.
204, 209-11, 13 S.E.2d 291, 293-94 (1941))). Specifically,
"post-traumatic stress disorder is a compensable injury" within
the meaning of the workers' compensation statute "if caused by
either a physical injury or an obvious sudden shock or fright
arising in the course of employment." Daniel Constr. Co. v.
Tolley, 24 Va. App. 70, 77, 480 S.E.2d 145, 148 (1997).
In the present case, the incident of August 11, 1997, as
described by claimant, does not rise to the level of an obvious
fright or sudden shock as contemplated in Hercules v. Gunther,
13 Va. App. 357, 412 S.E.2d 185 (1991), or Burlington Mills
Corp. v. Hagood, 177 Va. 204, 13 S.E.2d 291 (1941). The
commission determined that although claimant may have
experienced "discomfort and anxiety" from being trapped in the
elevator, the event was not "unexpected, shocking, or
catastrophic" so as to qualify as a compensable psychological
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injury. We accept those conclusions because they are supported
by credible and sufficient evidence.
Additionally, credible evidence supports the commission's
determination that claimant failed to prove she suffered from a
compensable occupational disease. Here, the medical evidence
demonstrated a long-term history of psychological problems, and
the commission was not required to accept the opinion of the
treating physician when countered by other evidence.
Accordingly, we conclude that the commission did not err in
finding that claimant's PTSD was not an aggravation of an
ordinary disease of life. See Owens, 30 Va. App. at 88, 515
S.E.2d at 349 (holding that the sound of a falling utility cover
was not an unexpected event and that the evidence was
insufficient to prove an aggravation of claimant's pre-existing
PTSD).
Finding no error in the commission's decision, we affirm.
Affirmed.
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