Lynchburg General Hospital and Sentry Insurance Co. v. Zachary D. Foster ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Malveaux
Argued at Salem, Virginia
UNPUBLISHED
LYNCHBURG GENERAL HOSPITAL AND
SENTRY INSURANCE CO.
MEMORANDUM OPINION* BY
v. Record No. 1479-17-3 JUDGE TERESA M. CHAFIN
APRIL 10, 2018
ZACHARY D. FOSTER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Jesse F. Narron (K. Elizabeth Kendall; Penn, Stuart & Eskridge, on
briefs), for appellants.
B. Patrick Agnew (Agnew, Johnson & Rosenberger PLLC, on brief),
for appellee.
Lynchburg General Hospital and Sentry Casualty Co. (collectively “Lynchburg General”)
appeal the decision of the Virginia Workers’ Compensation Commission (“the Commission”)
granting Zachary Foster benefits for head and brain injuries resulting from a vasovagal syncopal
episode on July 1, 2016. On appeal, Lynchburg General contends that the Commission erred in
(1) finding sufficient evidence to support a finding that Foster sustained a compensable injury by
accident arising out of his employment, and in (2) relying on inferences to establish the alleged
cause of Foster’s vasovagal syncopal episode in light of the lack of medical evidence establishing
causation. For the reasons that follow, we reverse the decision of the Commission.
Background
“On appeal, this Court views the evidence in the light most favorable to . . . the prevailing
party below.” Hess v. Va. State Police, 68 Va. App. 190, 194, 806 S.E.2d 413, 415 (2017)
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(quoting Advance Auto & Indem. Ins. Co. v. Craft, 63 Va. App. 502, 508, 759 S.E.2d 17, 20
(2014)). “[F]actual findings of the [C]omission will not be disturbed if based on credible
evidence.” Id. (quoting Anthony v. Fairfax Cty. Dep’t of Family Servs., 36 Va. App. 98, 103,
548 S.E.2d 273, 275 (2001)). The facts in this case are not in dispute.
On July 1, 2016, Foster, an emergency room paramedic, assisted a physician with a
lumbar puncture procedure.1 Foster stood in front of the patient to stabilize him during the
procedure. As the physician started to insert the needle into the patient’s spine, Foster testified
that he felt “light-headed” and “dizzy.” Foster lost consciousness and fell to the concrete floor,
sustaining a skull fracture and hematoma. His injuries required emergency surgery that day. A
July 8, 2016 medical record from a nurse practitioner noted that Foster “had a vasovagal
reaction.” Metabolic, blood, and glucose panels were performed after Foster’s accident.
Foster’s panel results indicated that he had an abnormally high glucose level.
Based on Foster’s training and experience as a paramedic, he testified that a vasovagal
episode is “either [a] lowering of the heart rate or the blood pressure . . . usually in reaction to
something that leads to a loss of consciousness or a syncopal episode.” Foster testified that the
vasovagal episode could result from dehydration, pain, or standing too long. He stated that even
though he had not eaten prior to the accident, he was not suffering from any of these potential
triggers of a vasovagal episode on the morning of the accident. However, Foster testified that he
does suffer from a heart condition called Kawasaki disease and food allergies severe enough to
necessitate carrying an EpiPen.
Foster further testified that he assisted with approximately six to twelve similar
procedures prior to the day of the accident. He recalled that although he had never discussed it
1
Foster described the lumbar puncture as a procedure where a “long skinny needle,” is
inserted into the spine “to get the fluid out of the back.”
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with anyone, he experienced “weird” reactions, or lightheadedness, when observing lumbar
needles being used in the past. However, he never lost consciousness in such a situation until the
day of the accident. He stated, “I never thought I would truly pass out. That’s part of the job . . .
I didn’t think I needed to tell anybody about it because nothing bad had ever happened.”
Foster testified that in his twelve years of being an EMT, he had seen many horrific
injuries, including burns and broken bones piercing the skin. He stated that as an EMT, he
administered intravenous medications and gave shots involving needles on a regular basis
without issue.
On July 11, 2016, Foster’s insurance carrier took his recorded statement. In that
statement, Foster claimed he did not know the cause of his loss of consciousness. He neglected
to mention an issue with needles on the day of the accident.
On February 27, 2017, the deputy commissioner issued an opinion denying Foster’s
claim. Although the deputy commissioner found that Foster’s injuries occurred in the course of
his employment, he concluded that the accident did not arise out of his employment. Foster
appealed to the full Commission.
On August 16, 2017, the full Commission reversed the deputy commissioner in a split
decision, finding that Foster’s injuries were compensable as they arose out of his employment.
The Commission stated that,
The medical records consistently described [Foster’s] loss of
consciousness as occurring while the subject medical procedure
was being performed. This timing, along with the claimant’s
history of feeling light-headed when observing lumbar puncture
procedures, and the absence of evidence of any other likely cause
of his loss of consciousness, allows [Foster] to meet that burden [of
proving by a preponderance of the evidence that he sustained a
compensable injury].
Lynchburg General appeals to this Court.
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Analysis
On appeal, Lynchburg General assigns error to the Commission’s finding that Foster
suffered a compensable injury. Specifically, Lynchburg General argues that the evidence failed
to establish that his injuries “arose out of” Foster’s employment. Lynchburg General further
contends that the Commission erred in relying on inferences to establish causation.
“Whether an injury arises out of and in the course of employment involves a mixed
question of law and fact, which we review de novo on appeal.” Blaustein v. Mitre Corp., 36
Va. App. 344, 348, 550 S.E.2d 336, 338 (2001) (citing Norfolk Cmty. Hosp. v. Smith, 33
Va. App. 1, 4, 531 S.E.2d 576, 578 (2000)); see also Dublin Garment Co. v. Jones, 2 Va. App.
165, 167, 342 S.E.2d 638, 638 (1986).
Under Virginia’s workers’ compensation statutes,
“‘[I]njury’ means only injury by accident arising out of and in the
course of the employment.” Code § 65.2-101. Thus, “[f]or an
injury to be compensable under the Workers’ Compensation Act,
the claimant must prove by a preponderance of the evidence three
elements: (1) that the injury was caused by an accident; (2) that
the injury was sustained in the course of the employment; and
(3) that the injury arose out of the employment.”
Dollar Tree Stores, Inc. v. Wilson, 64 Va. App. 103, 108, 765 S.E.2d 151, 153 (2014) (quoting
Southland Corp. v. Parson, 1 Va. App. 281, 283-84, 338 S.E.2d 162, 163 (1985)). “‘The
concepts “arising out of” and “in the course of” employment are not synonymous and both
conditions must be proved before compensation will be awarded.’” PYA/Monarch & Reliance
Ins. Co. v. Harris, 22 Va. App. 215, 221, 468 S.E.2d 688, 691 (1996) (quoting Marketing
Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc)).
“Virginia employs the actual risk test” in determining whether an injury arises out of
employment. Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828, 537 S.E.2d 35, 37
(2000) (quoting Vint v. Alleghany Reg’l Hosp., 32 Va. App. 60, 63, 526 S.E.2d 295, 297
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(2000)). Under this test, an injury is considered to have arisen out of the employment “if the
manner in which the employer requires the work to be performed is causally related to the
resulting injury.” Id. (quoting Vint, 32 Va. App. at 63, 526 S.E.2d at 297). The general rule is
that “[t]he causative danger must be peculiar to the work and not common to the neighborhood.”
Turf Care, Inc. v. Henson, 51 Va. App. 318, 325, 657 S.E.2d 787, 790 (2008) (quoting Basement
Waterproofing & Drainage v. Beland, 43 Va. App. 352, 356-57, 597 S.E.2d 286, 288 (2004)).
“The mere happening of an accident at the workplace, not caused by any work related risk or
significant work related exertion, is not compensable.” Plumb Rite Plumbing Serv. v. Barbour, 8
Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).
While the Commission may infer from the evidence that a work-related risk caused an
employee to sustain an injury, “[t]he claimant [has] the burden of establishing, by a
preponderance of the evidence, and not merely by conjecture or speculation, that [they] suffered
an injury by accident which arose out of and in the course of the employment.” Cent. State
Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257, 258 (1985). “An award based upon
surmise or conjecture will be set aside.” Sullivan v. Suffolk Peanut Co., 171 Va. 439, 443, 199
S.E. 504, 506 (1938).  “If the evidence shows that it is just as probable that the disability
resulted from a cause which is not compensable, as it is that it resulted from one which is
compensable, the claimant has not sustained the burden of proof.” Van Geuder v.
Commonwealth, 192 Va. 548, 557-58, 65 S.E.2d 565, 571 (1951) (quoting Carter v. Hercules
Powder Co., 182 Va. 282, 288, 28 S.E.2d 736, 738 (1944)).
In this case, the Commission determined that there was sufficient evidence to prove that
Foster’s injuries were compensable. We disagree. Foster’s own testimony was inconclusive as
to whether he was “light-headed” every time he had assisted in similar procedures. Next, the
medical records merely established a correlation between Foster having observed the procedure
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and his loss of consciousness. Finally, there were several other potential causes that were not
ruled out by evidence.
Foster’s own testimony that he previously felt light-headed when observing similar
procedures was inconclusive about the cause of his loss of consciousness. In fact, Foster initially
claimed that he was unaware of what caused his loss of consciousness. He failed to testify that
the light-headedness occurred during each of the six to twelve times he had assisted in a lumbar
puncture procedure. He further testified that he never lost consciousness in such a situation, and
therefore, he did not “think he needed to tell anybody about it.” Significantly, as an EMT, Foster
had been trained in such procedures and had witnessed numerous scenes far more horrendous
than the lumbar puncture procedure. See Hess, 68 Va. App. at 199, 806 S.E.2d at 418
(claimant’s traumatic experience of witnessing a mutilated body following a car crash was not a
“sudden or unexpected shock or fright” for a State Trooper with training and experience in fatal
accidents and crash scene reconstruction); Anthony, 36 Va. App. at 102, 548 S.E.2d at 275
(claimant, a social worker who was assaulted, was denied benefits because physical
confrontations were not unusual occurrences in claimant’s work environment).
The Commission inferred that the cause of Foster’s vasovagal episode was an emotional
reaction to observing the use of the lumbar puncture needle. However, the medical records
relied upon by the Commission, at most, established a correlation between Foster’s observation
of the procedure and his loss of consciousness. The July 1, 2016 emergency department record
only established that Foster’s vasovagal episode and the resulting injuries occurred following the
attempted lumbar procedure. The July 8, 2016 report from a nurse practitioner similarly stated
that Foster’s vasovagal episode happened “while assisting a procedure” and that he fell as a
result of the episode. Further, there is no support in the medical records for Foster’s testimony
that he previously felt light-headed when observing similar procedures. While these records
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established when the vasovagal episode took place, they did not establish what caused the
episode.
In support of his argument that medical evidence is not necessary in establishing
causation, Foster relies on Strictly Stumps, Inc. v. Enoch, 33 Va. App. 792, 537 S.E.2d 19
(2000). In that case, a tree fell on the claimant’s foot, a fact which was corroborated by an
eyewitness. The claimant did not pursue medical treatment until a year later. Medical records
referenced a right foot work injury, but never provided an opinion as to causation. In Enoch, this
Court noted that the medical records did not reference “an alternative trauma or other causative
factor.” Id. at 796, 537 S.E.2d at 21. It was additionally observed that “[t]he record in [Enoch]
does not establish that the medical issue was so complex that the commission made findings in
an area that could only be properly decided by medical experts.” Id.
As Lynchburg General properly asserts, the issues in this case involve a “non-physical,
internal reaction” that is “more complex than a physical, external injury” as was the case in
Enoch. Non-physical internal or emotional injuries, like the vasovagal syncope suffered by
Foster, can be caused by many factors that may not be immediately apparent to the claimant or to
an eyewitness. This Court in Enoch also relied on the fact that there was no discussion of “an
alternative trauma or other causative factor.” Here, there are several possible alternative causes
for Foster’s vasovagal episode present in the record including, but not limited to, Foster’s
diagnosed Kawasaki disease,2 food allergies, and abnormally high blood glucose levels. As the
dissenting commissioner correctly stated, the information in the medical records “is purely
anecdotal and not dispositive of the issue before us.”
2
The Mayo Clinic definition of “vasovagal syncope” submitted into evidence by Foster
expressly references “heart disorders” as a possible cause of vasovagal syncope.
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The Commission’s decision was based upon the factual finding that Foster’s vasovagal
episode was an emotional reaction to observing the use of the lumbar puncture needle. No
credible evidence exists in the record to support a finding that Foster’s injuries were caused by a
non-physical or emotional factor. Therefore, we must reverse the Commission’s decision.
Reversed.
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