PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, 1 S.J.
PAUL JOHNSON PLASTERING, ET AL.
v. Record No. 020994 OPINION BY JUSTICE ELIZABETH B. LACY
February 28, 2003
PAUL JOHNSON
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal involves an employee’s claim that he suffered a
brain injury and is entitled to permanent total disability
benefits pursuant to Code § 65.2-503(C)(3).
Paul Johnson was employed as a plasterer and drywall
installer. On January 15, 1990, he fell while standing on 42"
drywall stilts. He was taken to a hospital emergency room,
diagnosed with a fracture of the right wrist, and referred to an
orthopedist. He was also treated for abrasions on his forehead.
Dr. Thomas S. Meade, Jr., an orthopedist, put a cast on
Johnson's right arm and told him he could not work for at least
two months.
In March 1990, Johnson returned to Dr. Meade complaining of
neck, hand, back, and leg pain which Johnson attributed to the
January accident. In May 1990, Johnson was still complaining of
pain in his wrist and lower back and numbness in his left leg.
He also complained of vision problems, headaches, and
1
Chief Justice Carrico presided and participated in the
hearing and decision of this case prior to the effective date of
his retirement on January 31, 2003.
depression. Johnson had residual effects from the wrist
fracture and chronic low back pain. He also continued to be
depressed, a condition referred to as "chronic depression" by
Dr. Meade. Dr. Meade referred Johnson to Dr. Robert A. Nash, a
neurologist, for evaluation. In September 1990, Dr. Nash noted
that Johnson was no longer in pain but was slightly depressed.
Dr. Nash allowed Johnson to begin restricted work duties.
In October 1990, Dr. Nash referred Johnson to Harold J.
Kornylak, an osteopath, who apparently saw Johnson through March
1991. During this time Johnson complained of severe headaches,
nausea, and difficulty hearing conversations because of
"background noise." Although Johnson tried to return to work,
Dr. Meade noted that the stress of work was too much for Johnson
to handle. At this point, Dr. Meade referred Johnson to Dr. R.
Jeremy A. Stowell, a psychiatrist, for treatment because Johnson
was "chronically depressed" and not "tolerating his job well."
Dr. Stowell diagnosed Johnson as having a major depressive
disorder and recommended medical management. Dr. Raymond G.
Troiano performed a neurological consultation, reporting in
August 1991 that Johnson's headaches, dizziness, and other
neurological problems were related to depression which "could be
triggered" by the head injury. Dr. Troiano recommended a CT
2
imaging of the brain 2 which was performed by Dr. Mark Cramer on
January 20, 1992. His impression of the CT scan results was
that it was a "normal study" and showed no signs of brain
damage.
Johnson filed a claim for workers' compensation benefits by
letter dated November 27, 1990 in which he referred to the
January 1990 accident as causing injury to his "rt. wrist, head,
back, left leg and foot." The employer agreed that Johnson had
suffered a compensable injury by accident and Johnson received
payments for both temporary total and temporary partial
disability based on the wrist injury. In 1993, the Commission
entered an order based on a memorandum of agreement between
Johnson and the compensation insurance carrier providing that
Johnson was entitled to payment of his medical bills and
temporary total disability benefits of $382.00 a week beginning
December 11, 1991.
The required payments were made and medical bills were paid
for the following eight years. During that time, Johnson
continued to suffer from depression and associated problems and
was treated by a number of doctors including Drs. Meade,
Stowell, and Kornylak. Dr. Stowell referred Johnson to Dr.
2
CT scan, or computed tomography, is a diagnostic procedure
used to produce a series of cross-section images of internal
body parts. The Sloane-Dorland Annotated Medical-Legal
Dictionary 536 (1992 Supp.).
3
James P. Polk for evaluation of Johnson’s cognitive defects,
depression, headaches, and hallucinations. Dr. Polk stated in
both his 1995 and 1998 reports that Johnson's cognitive defects
were "consistent with the diagnosis of a traumatic brain injury"
sustained in the January 1990 industrial accident.
In 1998, Johnson was evaluated by Charles DeMark, a
certified rehabilitation counselor. DeMark concluded that
Johnson was permanently and totally disabled because of his
"deficits due to the traumatic brain injury" and his physical
limitations resulting from his wrist and back injuries.
On May 1, 1999, three months before the statutory
termination of his temporary total disability compensation
benefits under Code § 65.2-500(D), Johnson filed an application
with the Workers' Compensation Commission for permanent total
disability benefits pursuant to Code § 65.2-503(C)(3), claiming
that he suffered an injury to the brain. Johnson maintained
that his brain injury developed from the depression he suffered
as a result of his wrist injury or, alternatively, that the
brain injury was caused directly by the blow or trauma to his
head when he fell in the 1990 industrial accident. The 1998
reports by DeMark and Dr. Polk were submitted in support of
Johnson's application.
At the hearing on Johnson's application, in addition to
Johnson's testimony, the deputy commissioner admitted into
4
evidence medical evaluations and notes regarding Johnson's
condition including evaluations conducted for purposes of the
hearing. Briefly, this evidence included opinions by Johnson’s
doctors that his disability resulted from a structural change in
his brain or a brain injury that developed from his depression
which in turn was caused by the injury to his wrist, or,
alternatively, from a brain injury suffered when his head hit
the ground in the 1990 fall. Opinions of medical experts
offered by the employer generally concluded that Johnson did not
suffer a brain injury as a result of the 1990 fall and that
depression, while causing some cognitive defects, does not cause
brain injury, and did not cause the brain injury claimed in this
case. Based on this record, the deputy commissioner denied
Johnson's claim.
First, the deputy commissioner concluded that prior cases,
including Daniel Construction Co. v. Tolley, 24 Va. App. 70, 480
S.E.2d 145 (1997), precluded an award under Code § 65.2-
503(C)(3) for an injury that was a subsequent condition caused
by an injury sustained in an industrial accident. Therefore,
the deputy commissioner held that, if the brain injury claimed
by Johnson developed from his depression, it was not compensable
because it was not directly caused by the 1990 accident.
The deputy commissioner also denied compensation for a
brain injury that Johnson claimed was caused directly by the
5
1990 accidental fall. The deputy commissioner stated two
grounds for this holding. First, the deputy commissioner
determined that this claim was untimely because it was not filed
within two years of the date of the accident. See Code § 65.2-
601. The claim filed in 1990 did not identify an injury to
Johnson's brain, and none of the medical records for the time in
question referred to an injury to the brain. Further, the
memorandum of agreement entered in 1991 recited that the January
1990 accident resulted in an injury to Johnson's arm and that
the memorandum settled "all matters in controversy." The deputy
commissioner observed that, based on this evidence, when the
claim for benefits was made in 1990 and during the two year
period following the accident, none of the parties treated or
diagnosed Johnson as suffering from a brain injury sustained in
the 1990 accident. Therefore, the deputy commissioner concluded
that the reference in Johnson's application for benefits to a
"head" injury was not an application for benefits based on a
brain injury; such an application was not made until 1999 and,
therefore, was untimely.
Alternately, the deputy commissioner concluded that the
claim would be denied on the merits. The deputy commissioner
noted that the medical opinion in the case was virtually
unanimous that the claimant suffers from depression and other
psychological difficulties as a result of the pain and
6
disability that he has suffered as a result of his arm injury of
January 15, 1990, and he continues to be entitled to medical
treatment for those conditions. Nevertheless, the deputy
commissioner was persuaded based on the evidence in the record
that Johnson "did not suffer an injury to the brain on January
15, 1990, that resulted in cognitive defects that now render the
claimant unemployable."
Johnson appealed this decision to the full Commission. The
Commission, like the deputy commissioner, held that Johnson
failed to timely file his claim for a brain injury. The
Commission further stated that, even if the 1990 claim for a
head injury was broad enough to encompass a brain injury, the
claimant abandoned his claim for a brain injury when he executed
the memorandum of agreement in 1991 which resolved all matters
in controversy and did not cover any claim for a head or brain
injury. The Commission did not address whether Johnson suffered
a brain injury in the 1990 industrial accident. Johnson
appealed the Commission’s decision.
The Court of Appeals in a published opinion affirmed the
Commission's decision that the claim for a brain injury was
untimely. Johnson v. Johnson Plastering and National Surety
Corp., 37 Va. App. 716, 561 S.E.2d 40 (2002). The Court of
Appeals, however, disagreed with the Commission's determination
that permanent total disability benefits pursuant to Code
7
§ 65.2-503(C)(3) are available only if such injury was directly
caused by the industrial accident and held that benefits are
available for an injury that is the consequence of the injury
caused by the industrial accident. The Court of Appeals ordered
that the case be remanded to the Commission for a factual
determination whether Johnson suffered a brain injury that was
the consequence of the injury caused by the industrial accident.
Id. at 728, 561 S.E.2d at 46.
Both the employer and Johnson appealed to this Court. The
employer asserts that the order of remand was error, and Johnson
asserts that the Court of Appeals erred in holding that the 1990
filing for benefits based on a head injury was insufficient to
constitute a claim for an injury to the brain. 3
I.
Johnson asks us to reverse the holding by the Court of
Appeals that his claim for benefits based on a brain injury was
not timely filed. The record in this case shows, however, that
even if we were to agree with Johnson's position, he would not
be entitled to the benefits he seeks. In addition to holding
that the claim based on a brain injury was not timely filed, the
3
Johnson also asserted that the Court of Appeals erred in
holding that execution of the memorandum of agreement waived any
claim to an injury to the brain. The Court of Appeals did not
address this issue, however, and accordingly, we will not
address this assignment of error. Johnson, 37 Va. App. at 722
n.3, 561 S.E.2d at 43 n.3.
8
deputy commissioner concluded that the medical evidence did not
support a finding that Johnson suffered a brain injury at the
time of the January 1990 accident as a result of trauma to the
head. This factual finding was never set aside and precludes
Johnson from receiving permanent total disability benefits based
on his claim that he suffered a brain injury when he fell and
hit his head in the 1990 accident. 4 In light of this factual
determination, resolution of the timeliness of his claim, the
issue presented in his cross-error, would have no impact on
Johnson's eligibility to receive the compensation benefits he
seeks for a brain injury incurred in the January 1990 industrial
accident. Therefore, we will not address this issue.
Whether Johnson is entitled to recover benefits for a brain
injury developed from some other source is the issue raised by
the employer's assignment of error, and we now turn to that
issue.
II.
The employer assigns error to that part of the decision of
the Court of Appeals remanding the matter to the Commission to
determine whether the claimant "suffered an injury to the brain
and, if he is so injured, whether a causal connection exists
4
Johnson appealed this finding to the Commission but the
Commission did not address the finding and Johnson did not
pursue the matter further.
9
between his employment and the injury." Johnson, 37 Va. App. at
727, 561 S.E.2d at 46.
The Court of Appeals' directive was predicated on its
application of the doctrine of compensable consequence to claims
for permanent total disability awards under Code § 65.2-
503(C)(3). That section provides, in pertinent part, that a
claimant may recover for permanent and total incapacity when
there is "[i]njury to the brain which is so severe as to render
the employee permanently unemployable in gainful employment."
Code § 65.2-503(C)(3). The deputy commissioner and the
Commission, relying on Daniel Construction, held that awards
under this statute could not be based on an injury to the brain
that develops subsequent to an accident. The Court of Appeals
rejected this construction of the statute and of Daniel
Construction, holding that an injury under Code § 65.2-503(C)(3)
is compensable "when the injury does not arise on the day of the
accident, but instead develops as a direct consequence of an
initial injury." Johnson, 37 Va. App. at 727, 561 S.E.2d at 46.
This holding is consistent with the principle established in
Amoco Foam Products Co. v. Johnson, 257 Va. 29, 510 S.E.2d 443
(1999).
In Amoco Foam, we held that an injury suffered as a direct
result of an industrial accident may give rise to other
compensable injuries. In that case, the industrial accident
10
directly injured the employee's left ankle. While the employee
was recovering from surgery necessitated by the left ankle
injury, the left ankle gave way, causing injury to the
employee's right knee. Two years later, the employee's right
knee "gave out" causing another fall. Id. at 31, 510 S.E.2d at
443. We concluded that the initial injury to the right knee was
compensable as a direct consequence of the left ankle injury but
that the second injury to the right knee was not compensable.
To be a compensable injury, the causation link "must directly
connect the original accidental injury with the additional
injury for which compensation is sought." Id., 510 S.E.2d at
445. In Amoco Foam, the initial knee injury was the causal link
between the left ankle injured in the industrial accident and
the second right knee injury. Without any direct link between
an injury caused by the industrial accident and the injury for
which compensation is sought, there can be no compensation. Id.
at 33, 510 S.E.2d 444-45.
While we agree with the Court of Appeals' analysis, we
disagree with its conclusion that a remand of the matter to the
Commission for further factual findings is required.
Johnson seeks permanent total disability benefits based on
a brain injury. He has consistently asserted that his brain
injury was caused (1) by his depression which was caused by the
initial injury to his wrist in the industrial accident; or (2)
11
by the blow or trauma to his head when he fell in the industrial
accident; or (3) by both. Applying Amoco Foam, if the brain
injury was caused by the depression which developed from the
wrist injury, the brain injury is not compensable because, under
this theory, there is no direct causal link between that brain
injury and the original industrial accident injury, the wrist
injury.
The second claimed cause of the brain injury is the
industrial accident itself. Recovery under this theory does not
involve the application of the compensable consequences
doctrine; however, recovery under this theory has already been
eliminated by the deputy commissioner's factual finding
discussed above, that no brain injury was caused by the initial
industrial accident.
Johnson has not identified any other injury as the source
of the brain injury for which he seeks benefits. He has never
asserted that his brain injury was a condition subsequent to any
injury other than the depression. Furthermore, nothing in the
extensive medical testimony in this record suggests any other
injury as the source of the brain injury. All the doctors
asserting that Johnson had a brain injury opined that either the
depression or the initial trauma to the head caused the claimed
brain injury. On this record, therefore, there is no basis for
remanding this case to the Commission.
12
In summary, for the reasons stated, we will reverse that
portion of the Court of Appeals' judgment remanding the case to
the Commission and enter final judgment in favor of the
employer.
Reversed and final judgment.
13