Volvo Cars of North America v. A. Altizer ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
VOLVO CARS OF NORTH AMERICA
AND
LUMBERMEN'S MUTUAL CASUALTY COMPANY
MEMORANDUM OPINION*
v. Record No. 1329-99-3 PER CURIAM
OCTOBER 19, 1999
ALVIE J. ALTIZER, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Dale W. Webb; Monica L. Taylor; Gentry,
Locke, Rakes & Moore, on briefs), for
appellants.
(Ginger Jonas Largen; Morefield, Kendrick,
Hess & Largen, P.C., on brief), for appellee.
Volvo Cars of North America and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Alvie J. Altizer,
Jr. proved that his current psychiatric condition and disability
constituted a compensable consequence of his January 15, 1997
industrial accident and April 1997 re-injury. 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. See Rule 5A:27.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"The actual determination of causation is a factual
determination that will not be disturbed on appeal if there is
credible evidence to support the finding." Ingersoll-Rand Co.
v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). It
is well settled that when an injury by accident accelerates or
aggravates a pre-existing condition, disability resulting
therefrom is compensable. See Russell Loungewear v. Gray, 2 Va.
App. 90, 95, 341 S.E.2d 824, 826 (1986). Likewise, when a
compensable injury by accident aggravates or contributes to a
pre-existing psychological condition, the subsequent
"[e]motional harm following physical injury is compensable, even
when the physical injury does not directly cause the emotional
consequence." Seneca Falls Greenhouse & Nursery v. Layton, 9
Va. App. 482, 486, 389 S.E.2d 184, 187 (1990).
In finding that Altizer sustained his burden of proving a
causal relationship between his January 1997 injury by accident
and April 1997 re-injury and the aggravation of his psychiatric
condition and resulting disability, the commission found as
follows:
[Altizer] clearly suffered
psychological problems prior to the
work-related accident, as evidenced by Dr.
[Scott] Jamison's records which repeatedly
refer to his depression and anxiety. . . .
Important to this case, however, is the fact
that [Altizer's] mental condition had not
affected his ability to work. For three
years, Dr. Jamison consistently treated
[Altizer] for depression, but it did not
prevent him from working. Yet, on June 24,
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1997, Dr. Jamison stated that he viewed
[Altizer] "as being unsafe to be in a work
environment . . ." because of his
psychological condition. Dr. [Riaz Uddin]
Riaz acknowledged that [Altizer] experienced
anxiety prior to the injury but noted that
it did not prevent him from working. [Dr.
Riaz opined that Altizer's "[m]ajor
depression was precipitated by work related
injury and [his] generalized anxiety
disorder was aggravated by his industrial
injuries."] [Altizer] testified that he
took Prozac prior to the accident, but had
stopped because: "Finally my nerves got
good enough that I didn't have to. I just
went off of it and was doing pretty good."
In a deposition taken April 9, 1998, Dr.
[Neil P.] Dubner concluded that:
his disabling condition, as far as
I'm concerned, is not an
orthopedic one but a psychiatric
one. One of his diagnoses is pain
disorder, meaning there is an
excessive response to the injury
or to the physical symptoms.
It was not until after the January 15, 1997
injury, the March 10 wrist injury, and the
April 15 shoulder aggravation that [Altizer]
became psychologically unable to work. . . .
Although [Altizer] left work after an
argument with his supervisor, the medical
records indicate that his mental instability
causing him to leave work was from the
residuals of the original work injury and
subsequent aggravations.
In its role as fact finder, the commission was entitled to
accept Dr. Dubner's opinion, which was supported by the medical
reports and opinions of Drs. Riaz and Jamison and clinical
psychologist, Constantine G. Demopoulos, and to reject the
contrary opinion of Dr. Robert S. Brown, Jr., who evaluated
Altizer on one occasion at employer's request. "Questions
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raised by conflicting medical opinions must be decided by the
commission." Penley v. Island Creek Coal Co., 8 Va. App. 310,
318, 381 S.E.2d 231, 236 (1989). The opinions and medical
records of Drs. Dubner, Riaz, Demopoulos, and Jamison, along
with Altizer's testimony, constitute credible evidence to
support the commission's decision. Indeed, in a March 17, 1998
letter, Dr. Dubner, who had been treating Altizer since April
17, 1997, opined that Altizer's depressive condition was the
direct result of the January and April 1997 industrial
accidents. "The fact that there may be contrary evidence in the
record is of no consequence if there is credible evidence to
support the commission's finding." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
We note that no evidence in the record supports employer's
argument that Altizer's current psychiatric condition and
resulting disability were caused by a one-time argument with his
supervisor at work on April 17, 1997. In fact, Altizer
testified by deposition that, as of that date, "I just got
depressed because I couldn't do anything with the right
shoulder, couldn't sleep." He stated that he stopped working at
that point because he "thought it was going to get better but
the depression got so bad over my shoulder. I couldn't do
nothing [sic] with it and couldn't raise it, hardly raise it up
over my head." Furthermore, no physician, including Dr. Brown,
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causally related Altizer's present psychiatric condition and
disability to the April 17, 1997 incident with his supervisor.
For these reasons, we affirm the commission's decision.
Affirmed.
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