Owen Riley Boone, MD v. Loudoun Surgical etc ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
OWEN RILEY BOONE, M.D.
MEMORANDUM OPINION *
v. Record No. 0031-96-4 PER CURIAM
AUGUST 6, 1996
LOUDOUN SURGICAL ASSOCIATES, LTD./
THE VIRGINIA INSURANCE RECIPROCAL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Owen Riley Boone, pro se, on briefs).
(John E. McIntosh, Jr.; Crews & Hancock, on
brief), for appellees.
Owen Riley Boone ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that he
failed to prove that his depression and post-traumatic stress
syndrome were caused by either (1) an injury by accident arising
out of and in the course of his employment; or (2) an ordinary
disease of life related to conditions peculiar to his employment.
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.
I. Injury by Accident
"To be compensable as an injury by accident, a purely
psychological injury must be causally related to a physical
injury or causally related to an obvious sudden shock or fright
arising in the course of employment." Chesterfield County Fire
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Dept. v. Dunn, 9 Va. App. 475, 477, 389 S.E.2d 180, 182 (1990).
Moreover, "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). Unless we
can say as a matter of law that claimant's evidence sustained his
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).
In holding that claimant failed to prove a compensable
injury by accident, the commission found as follows:
[T]he notification of nonrenewal of a
malpractice insurance policy, standing alone,
or viewed in conjunction with a subsequent
request for copies of medical records, is not
the type of incident previously held by the
Commission to engender a "sudden shock or
fright . . ." Both of these incidents, which
can be stressful, can reasonably be
anticipated in the normal course of business
and cannot be viewed as being so shocking as
to rise to the level of compensability under
§ 65.2-101. We further note that the
claimant received the letter requesting
copies of medical records at least one month
after he received his insurance cancellation
notice. These events cannot be viewed as a
single specific incident.
It was undisputed that claimant's psychological condition
was not the result of a physical injury. Moreover, the record
supports the commission's factual findings which are binding upon
appeal. These factual findings support the commission's
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conclusion that claimant's evidence did not rise to the level
required to prove that his purely psychological injury was
compensable as an injury by accident.
II. Occupational Disease
A claimant must prove the existence of an occupational
disease by a preponderance of the evidence. Virginia Dept. of
State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308
(1985). Moreover, one seeking to establish that an ordinary
disease of life is employment-related, and should be treated as
an occupational disease, bears the burden of producing clear and
convincing evidence in support of that claim. Code § 65.2-401.
Claimant does not contest the commission's determination that the
ordinary disease of life burden applied to his depression with
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post-traumatic stress disorder.
Code § 65.2-401 requires that for an ordinary disease of
life to be treated as an occupational disease, a claimant must
establish, by clear and convincing evidence, to a reasonable
degree of medical certainty, that it arose out of and in the
course of employment, as provided in Code § 65.2-400, and did not
result from causes outside of the employment. Code § 65.2-400
defines an occupational disease as one "arising out of and in the
course of employment." Furthermore, the statute provides that
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The commission assumed, without deciding, that claimant's
depression with post-traumatic stress disorder constituted a
"disease" under the Workers' Compensation Act. Because employer
did not appeal this finding, it is final and binding upon this
Court on appeal.
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"[a] disease shall be deemed to arise out of the employment" when
the evidence establishes six elements. Id. Element (3) requires
that the disease "is characteristic of the employment and was
caused by conditions peculiar to such employment." "Whether a
disease is causally related to the employment and not causally
related to other factors is . . . a finding of fact." Island
Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788
(1988).
The commission found that claimant's evidence failed to
prove the necessary causal link between his psychological
condition and his employment. This finding is supported by the
records and opinions of Drs. C. Gibson Dunn and Brian Schulman,
psychiatrists.
Dr. Dunn's medical reports refer to numerous stressors in
claimant's life, including long-standing personal conflicts with
his partner, Dr. Thomas Gates, which would not lead to
compensability, anxiety because of his wife's reaction to the
prospect of his retiring, feelings of having been abused by the
malpractice insurance system, anxiety because of his siblings'
health problems, and claimant's own anxiety over whether he
should retire or quit. The notations contained in these records
support the commission's finding that claimant did not prove by
clear and convincing evidence that his condition was primarily
caused by his employment. The record showed that claimant had
numerous sources of stress in his life that may have contributed
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to his condition. In fact, Dr. Dunn stated in his deposition
that claimant's psychological condition was not characteristic of
or peculiar to his work as a surgeon.
After performing a comprehensive psychiatric examination of
claimant on May 23, 1995 and reviewing the records of Dr. Dunn,
Dr. Schulman opined that "[t]here is no substantive medical
evidence that Dr. Boone's depression was specifically caused by
conditions of his employment or exposure to any specific
psychosocial or occupational stressor."
Based upon this record, we cannot say as a matter of law
that claimant's evidence sustained his burden of proving by clear
and convincing evidence that his depression with post-traumatic
stress syndrome arose out of and in the course of his employment
pursuant to the requirements of Code § 65.2-401.For these
reasons, we affirm the commission's decision.
Affirmed.
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