Mary Washington Hosp. v. Loretta Harrison ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judges Baker and Annunziata
Argued at Alexandria, Virginia
MARY WASHINGTON HOSPITAL and
HEALTHCARE PROVIDERS GROUP
SELF-INSURANCE ASSOCIATION
OPINION BY
v. Record No. 0331-97-4 JUDGE JOSEPH E. BAKER
DECEMBER 16, 1997
LORETTA HARRISON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Linda M. Ziegler (Crews & Hancock, P.L.C., on
briefs), for appellants.
Wesley G. Marshall (Peter M. Sweeny
& Associates, P.C., on brief), for appellee.
Mary Washington Hospital and Healthcare Providers Group
Self-Insurance Association (jointly referred to herein as
employer) appeal from an award entered by the Workers'
Compensation Commission (commission) in favor of Loretta Harrison
(claimant). The question presented by employer is whether
credible evidence supports the commission's award of temporary
partial disability benefits to claimant for the period of
February 7, 1996 and continuing. Employer contends the award is
not supported by a factual finding contained in the record. We
disagree and affirm the commission's decision.
Pursuant to a claim for benefits filed by claimant on
November 9, 1995, a hearing was held on July 10, 1996 before
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
Deputy Commissioner Herring. As stated by the deputy at the
outset of the hearing, claimant sought:
temporary total disability benefits,
temporary partial benefits, and medical--and
temporary partial benefits as follows:
Temporary total from June 7, 1995 through
September 29, 1995, temporary partial from
September 30, 1995 through October 27, 1995,
temporary total from October 28, 1995 through
February 6, 1996, and temporary partial from
February 7, 1996 and continuing.
At that hearing, the parties stipulated that claimant sustained a
compensable back injury on June 7, 1995; that employer paid
temporary total disability compensation from June 7, 1995 through
September 30, 1995; and that employer paid temporary partial
compensation from September 30, 1995 through October 27, 1995.
Relevant to this appeal, the deputy further established
after those stipulations were confirmed that (1) claimant sought
only "temporary total benefits from October 28, 1995 through
February 6 [,1996] [and] temporary partial disability benefits
from February 7, 1996 and continuing," and (2) employer "defended
on the ground the disability claimant asserts as a basis for her
claim [depression] was not causally related to her June 7, 1995,
industrial accident injury."
While the inferences to be drawn from the evidence are in
dispute, the following evidence is contained in the record. On
June 7, 1995, claimant sustained a work-related back injury.
That injury was accepted by employer as compensable, and the
commission entered the appropriate award. On October 24, 1995,
- 2 -
Dr. John S. Moss, claimant's treating physician for her back
injury, released her to return "to work without restriction." 1
Nancy Daum, a diagnostic section leader of employer's radiology
department, was assigned to discuss with claimant the hours
claimant would work. Daum and claimant disagreed as to whether
claimant was able to work three fourteen-hour shifts as she had
prior to her injury. Following that disagreement, claimant
became distraught to the extent that she contemplated suicide
while on her way to a physical therapy appointment. When
claimant arrived at the therapy center, she discussed her
condition with Cynthia Starling, the center's pain management
director, who recommended that claimant seek immediate admission
to Snowden of Fredericksburg, an inpatient psychiatric facility.
Starling drove claimant to the facility. Thereafter, claimant
received inpatient and outpatient treatment from Drs. Norman
Holden, Donald R. Reed, and P. S. Vachher, psychiatrists, and
remained totally disabled due to her psychiatric condition
through February 6, 1996.
Claimant returned to work on February 7, 1996 but worked
only three ten-hour shifts per week, asserting that she could not
work more than ten hours per day due to her depression. On
December 8, 1995, Dr. Reed, who began treating claimant as an
outpatient on November 28, 1995, opined that claimant would
1
The effect of that letter was to require claimant to return
to her pre-injury job.
- 3 -
recover from her depressive condition faster on a regular work
week, preferably days. On April 17, 1996, Dr. Holden, who also
treated claimant as an outpatient, advised employer as follows:
This is an update on our report [on claimant
of] December 8, 1995. At that time, we
advised against her working long hours. She
reports that she has been working 14-hour
days. We believe that she would recover
better if she could work 8- or 10-hour days.
She is still suffering with depression along
with thyroid problems which are both
complicated by her recent pregnancy. Shorter
hours could be beneficial for her daily
functioning.
At the hearing before the deputy commissioner, claimant
sought to introduce a letter which contained the causal
relationship responses of Dr. Holden. The deputy first refused
to consider the responses as evidence, but later stated that they
would be admitted. However, in his opinion, the deputy expressly
noted that Dr. Holden's responses were not considered. Those
responses opined that claimant's depression was related to her
June 7, 1995 injury.
The deputy made the following relevant findings:
We are convinced, on the record before us,
that [claimant] was unable to work from
October 28, 1995, through February 6, 1996,
and that she was on a reduced schedule
thereafter. We also find that these
disabilities were the product of her
psychiatric difficulties. However, we cannot
find . . . that the claimant's depression and
subsequent disability were the proximate
result [or a compensable consequence] of the
. . . industrial accident.
(Emphasis added.)
- 4 -
The deputy commissioner made factual findings "on the
record" before him that claimant "was unable to work from
October 28, 1995, through February 6, 1996," and that she was on
a "reduced schedule thereafter." Thus, the deputy made a clear
factual finding that claimant was temporarily partially disabled
after February 6, 1996. However, the deputy further found that,
although claimant was disabled during the stated periods due to a
proved psychiatric condition, that condition had not resulted
from her June 7, 1995 job-related injury.
Claimant requested the commission to review the deputy's
findings and determine whether claimant's psychiatric condition
was causally related to her compensable injury and, if so,
whether she was entitled to the temporary total and temporary
partial disability benefits claimed. On claimant's request for
review, the full commission reversed the deputy's ruling on the
admissibility of Dr. Holden's responses and found that claimant's
psychiatric disability was causally related to her compensable
injury.
The commission remains free to make findings of fact
different from those made by the deputy commissioner. See
Virginia Dep't of State Police v. Dean, 16 Va. 254, 257, 430
S.E.2d 550, 551 (1993). Emotional or psychological conditions
resulting from an accidental event are compensable. See E.C.
Womack, Inc. v. Ellis, 209 Va. 588, 591-93, 166 S.E.2d 265, 269
(1969); Hercules, Inc. v. Gunther, 13 Va. App. 357, 362, 412
- 5 -
S.E.2d 185, 188 (1991). The commission entered an award for
temporary total and temporary partial disability benefits for the
periods sought.
In this appeal, employer does not contest the commission's
finding that claimant's psychiatric disability was a compensable
condition causally related to her June 7, 1995 industrial injury.
The single issue we are to decide, so states employer, is
whether credible evidence in the record supports the commission's
award of temporary partial disability benefits to claimant for
the period of February 7, 1996 and continuing. 2
The deputy commissioner found that claimant's total
inability to work from October 28, 1995 through February 6, 1996,
and her inability to work full time thereafter, was due to her
psychiatric condition. That finding was neither appealed by
employer nor reversed by the commission. See Dean, 16 Va. App.
at 257, 430 S.E.2d at 551. When the commission reversed the
deputy's refusal to consider Dr. Holden's responses and found
that claimant's depression was causally related to her industrial
injury, the established, uncontested facts were that claimant's
condition prevented her from working between October 28, 1995 and
February 6, 1996, and prevented her from working full time
2
For the first time, in its reply brief to this Court,
employer contended that claimant's receipt of temporary partial
disability benefits is barred because she failed to prove she
marketed her residual capacity beyond the thirty hours per week
she worked for employer. However, employer's failure to raise
this issue below bars our review. See Rule 5A:18.
- 6 -
thereafter. Thus, it follows, without more, that claimant is
entitled to temporary partial benefits continuing until it is
otherwise proved she no longer suffers from a job-related
condition that prevents her from returning to her pre-injury job.
Where reasonable inferences may be drawn from the record to
support the commission's findings, they will not be disturbed by
this Court on appeal. See Hawks v. Henrico Co. Sch. Bd., 7 Va.
App. 398, 404, 374 S.E.2d 695, 698 (1988). The record contains
credible evidence to support the commission's decision to award
temporary partial disability beginning February 7, 1996 and
continuing. See Manassas Ice & Fuel Co. v. Farrar, 13 Va. App.
227, 229, 409 S.E.2d 824, 826 (1991).
Accordingly, the judgment of the commission is affirmed.
Affirmed.
- 7 -