New Energy Bedrooms, Inc v. Dennis K Flinchum ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Hodges
Argued by teleconference
NEW ENERGY BEDROOMS, INC. AND
PACIFIC INDEMNITY COMPANY
MEMORANDUM OPINION* BY
v. Record No. 2036-02-3 JUDGE WILLIAM H. HODGES
APRIL 1, 2003
DENNIS K. FLINCHUM
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert C. Baker, Jr. (Dobbs & Baker, on
brief), for appellants.
P. Heith Reynolds (Wolfe, Williams &
Rutherford, on brief), for appellee.
New Energy Bedrooms, Inc. and its insurer (hereinafter
referred to as "employer") appeal from a decision awarding
medical benefits to Dennis K. Flinchum (claimant). Employer
contends the Workers' Compensation Commission erred in finding
that claimant proved that his claim for depression constituted a
compensable consequence of his February 9, 1999 compensable
injury by accident and, therefore, his February 13, 2001 claim
was timely filed. Finding no error, we affirm the commission's
decision.
[The] doctrine [of compensable
consequences], also known as the chain of
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
causation rule, provides that "'where the
chain of causation from the original
industrial injury to the condition for which
compensation is sought is direct, and not
interrupted by any intervening cause
attributable to the [employee's] own
intentional conduct, then the subsequent
[condition] should be compensable.'"
Food Distributors v. Estate of Ball, 24 Va. App. 692, 697, 485
S.E.2d 155, 158 (1997) (citation omitted). "The simplest
application of this principle is the rule that all the medical
consequences and sequelae that flow from the primary injury are
compensable." American Filtrona Co. v. Hanford, 16 Va. App.
159, 163, 428 S.E.2d 511, 513 (1993) (citation omitted)
(emphasis added).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In ruling that claimant proved his depression was a
compensable consequence of his initial February 9, 1999 injury
by accident, the commission found as follows:
Here, claimant's psychiatric symptoms
developed after the work accident, as a
consequence of his alleged back and neck
injuries and his associated pain and
distress. Accordingly, we conclude that the
Deputy Commissioner erroneously applied the
Supreme Court's holding in Shawley [v.
Shea-Ball Constr. Corp., 216 Va. 442, 219
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S.E.2d 849 (1975)], to the facts of this
case, and that the February 13, 2001, claim
for emotional dysfunction is not time
barred.
Although Dr. [Darrell F.] Powledge
concluded that the claimant's depressive
neurosis pre-existed the February 9, 1999,
injury by accident, the greater weight of
the medical evidence is that the claimant's
depression and emotional dysfunction relates
to the injury by accident as a compensable
consequence. In this regard, we rely upon
Dr. [Gary M.] Rooker's opinion that the
claimant's depressive disorder is related by
history to the February 9, 1999, injury by
accident, but is not disabling due to the
moderate level of his symptoms. The Deputy
Commissioner's award will be modified to
include medical coverage for the claimant's
emotional dysfunction, but no disability
will be awarded.
The commission's factual findings are supported by credible
evidence, including Dr. Rooker's medical records and opinions.
"The fact that there is 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). In its role as
fact finder, the commission was entitled to weigh the medical
evidence, to accept Dr. Rooker's opinion, and to reject
Dr. Powledge's opinion. "Questions 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).
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Because credible evidence supports the commission's finding
that claimant's depression constituted a compensable consequence
of his compensable February 9, 1999 injury by accident, we
affirm the commission's decision that the February 13, 2001
claim was timely filed.
Furthermore, the record shows that employer did not argue
before the commission that claimant's February 13, 2001 claim
could not be considered a change in condition because no prior
award existed. Rather, employer argued that under Shawley there
is no exception for compensable consequences and the claim for
depression constituted a separate injury which had to be filed
within two years of the accident. Thus, we will not consider
employer's argument raised for the first time on appeal that the
claim was time barred because no prior award existed. See Rule
5A:18. In addition, the record establishes that claimant filed
an initial claim for benefits on October 16, 2000, well within
the two-year statute of limitations. He asserted before the
commission that a de facto award existed, and employer, in fact,
stipulated to the entry of an award for the period of September
1, 1999 to April 5, 2000, a period for which employer had
already paid compensation. Therefore, the commission did not
address the issue of whether a prior award existed, and we will
not consider that issue for the first time on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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