COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
K & G ABATEMENT COMPANY AND
GRANITE STATE INSURANCE COMPANY
OPINION BY
v. Record No. 0164-02-1 JUDGE G. STEVEN AGEE
AUGUST 20, 2002
THOMAS E. KEIL (DECEASED) AND
PEGGY T. KEIL (WIDOW)
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
F. Nash Bilisoly (Brian L. Sykes; Vandeventer
Black, LLP, on briefs), for appellants.
Stephen A. Strickler (Matthew H. Kraft;
Inman & Stickler, PLC, on brief), for
appellees.
K & G Abatement Company (employer) appeals the decision of
the Workers' Compensation Commission (the commission) to award
benefits to Peggy T. Keil (claimant) for the death of her
husband, Thomas Keil (Keil), an employee of employer. It
contends the commission erred by (1) refusing to permit it to
produce rebuttal evidence, (2) denying its motion in limine and
(3) finding that claimant established that Keil's fatal injuries
arose out of his employment. We disagree and affirm the
commission's decisions.
I. BACKGROUND
Keil, age fifty-nine, was working on the roof of S.H.
Clarke Academy in Portsmouth on the morning of November 10,
1998. The school is primarily a one-story building, but has a
two-story extension where Keil and two other employees were
working. At approximately 10:00 a.m., Keil left the second
story roof workstation to descend to the ground to place a
telephone call. He climbed down a permanent ladder to the first
story roof where he was then out of the other roofers' sight.
In order to go from the first story roof to the ground, Keil had
to lower a twenty-foot extension ladder to the ground. Several
people inside the school heard the sound of the extension ladder
being displaced and something striking the concrete pavement.
Shortly thereafter, Keil was found lying on the ground
combative, disoriented, mumbling and with an open-head wound.
Loose gravel from the roof was found on the ground around him.
No one witnessed Keil's fall, and Keil was unable to provide
anyone with the details of what happened. He was transported by
ambulance to a nearby trauma center.
An angiogram was performed at the trauma center after which
Keil suffered cardiac arrest. Keil was revived but subsequently
arrested two more times and was pronounced dead at 6:04 p.m. No
autopsy was performed. The medical examiner, Dr. Hoffman, filed
a certificate of death stating that death was caused by "closed
chest and head injuries."
Claimant filed a claim with the commission to receive
benefits. In defense, employer filed three medical reports.
First, employer submitted a letter from Dr. Waters, the
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neurologist who examined Keil after he suffered cardiac arrest
and pronounced him neurologically dead. Dr. Waters wrote:
I would disagree with [the medical examiner]
that Mr. Keil's death was from a closed head
injury. After reviewing the events which
transpired while he was hospitalized at
Norfolk General Hospital, the type of death
he suffered from was very precipitous and,
indeed, very inconsistent with a patient
dying from brain swelling or any type of
intracranial process. I therefore believe
that [the medical examiner's] opinion, that
the cause of death was a closed head injury,
is inaccurate.
Employer also submitted a letter from Dr. Collins, the
trauma physician who treated Keil upon his admission to the
hospital. Dr. Collins concluded, "without an autopsy I am
unable to speculate about the possible causes of [Keil's]
demise."
The third letter submitted by employer was from
Dr. Hagberg, the cardiac and thoracic surgeon who examined
Keil's angiogram, but who did not personally examine Keil. In
response to questions posed by employer, Dr. Hagberg answered
that he was unable to determine, with a reasonable degree of
medical certainty, what caused the cardiac arrest which led to
Keil's death. 1
1
He did write that (1) it was his opinion that it was
"unlikely, but possible" that the blunt trauma of the fall
caused cardiac arrest; (2) that Keil's prior medical history of
hyperlipidemia, obesity, hypertension and atypical chest pain
was sufficient to cause cardiac arrest, and (3) "[a]ssuming
that, because no autopsy was performed, it is not possible to
state with a reasonable degree of medical certainty what was the
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The commission scheduled a hearing before a deputy
commissioner for June 21, 2000. On June 9, 2000, claimant filed
two short lists of questions answered by Drs. Waters and Hagberg
in response to inquires from claimant's counsel. Dr. Waters
answered, "yes," that it was his opinion that Keil's multiple
and significant head injuries (1) contributed to his ultimate
demise and (2) Keil "most probably died as a result of his fall
from the roof."
In a separate inquiry, Dr. Hagberg answered the following
question, "no":
Now being advised that Mr. Keil [fell] from
a height of 15 to 21 feet onto concrete
(whereas previously you had been advised
that he had only fallen 8 to 10 feet) and
further being advised that Mr. Keil was
localizing pain in his head and lower
quadrant after the accident and upon further
review of the medical records, can you state
with a reasonable degree of medical
certainty that the most likely cause of
Mr. Keil's cardiac arrest was a myocardial
infarction?
At the hearing before the deputy commissioner, claimant
introduced the responses from Drs. Waters and Hagberg without
objection from employer. The deputy commissioner granted
employer's request for permission to depose Drs. Waters and
Hagberg post-hearing and that the record be kept open in order
to receive those depositions and a previously scheduled
actual cause of cardiac arrest," "[t]he most likely cause of
[Keil's] demise was a myocardial infarction."
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deposition of Dr. Hoffman. No other cause to leave the record
open was cited by employer or acknowledged by the deputy
commissioner.
Dr. Hagberg testified, by deposition, that he only examined
Keil from a distance because Keil suffered cardiac arrest. He
"merely interpreted the aortogram" and opined that Keil died
from cardiac arrest but was unable to determine what led to the
arrest. Dr. Hagberg stated that any theory he posed would be
speculation.
Dr. Waters testified in his deposition that he performed a
neurological examination of Keil and determined that Keil
demonstrated no neurological functions. He reviewed the CT scan
taken of Keil's head and noted skull fractures, a bruise on the
right side of the brain, some blood in the frontal lobes, an
epidural hemorrhage and a subarachnoid hemorrhage. He opined
that Keil's head injuries did not cause the cardiac arrest, but
was unable to determine what did cause the arrest.
Subsequent to these depositions, but prior to the
deposition of Dr. Hoffman, employer requested permission to
depose Dr. Collins and to have an expert cardiovascular
physician testify. Employer argued the additional evidence was
necessary and complained that it "had presented all of the
medical opinions needed to defend [its] case five months prior
to the hearing and that it was manifestly unfair to allow
counsel for the claimant to produce new medical opinions . . .
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days prior to the hearing without allowing [it] to take
reasonable steps 'to meet that evidence.'" The employer's
request was denied by the deputy commissioner.
In his deposition, Dr. Hoffman, the medical examiner,
opined, to a reasonable degree of medical certainty, that Keil
suffered an accidental death caused by closed head and closed
chest injuries. This is the same opinion he submitted on the
death certificate. Dr. Hoffman further opined that an aortic
dissection discovered in Keil's aortagram "[was] evidence that
there was acceleration/deceleration injury inside the chest."
Finally, he stated there was no real evidence of myocardial
infarction.
Here, we have no real evidence of myocardial
infarction . . . . We have some head
injuries that we know are not sufficient by
themselves to cause death, we have some
closed chest injuries that we know are not
what we see sufficient to cause death, but
we have no evidence of myocardial
infarction. It is not speculation that he
fell. It is not speculation that he has
some chest injuries. It is not speculation
he has some head injuries. It would be
extreme speculation to say he had a
myocardial infarction, and that is where we
[determined] accidental death . . . . We
looked at this not once, but three separate
times, and discussed it as a matter of
policy with the chief medical examiner in
Richmond.
Employer then filed a motion in limine to limit the
introduction of portions of the deposition testimony of
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Drs. Waters and Hoffman. Employer alleged the physicians'
testimony was speculative and without foundation in medical
facts. The deputy commissioner denied the motion, finding the
testimony was not conjectural or speculative.
The deputy commissioner issued a February 2, 2001 opinion,
which awarded claimant compensation for burial and
transportation expenses related to the deceased and weekly
compensation in the amount of $534 for the maximum statutory
period allowed. In making the award, the deputy commissioner
applied a presumption that Keil's death was due to an
unexplained accident, which arose out of employment, and that
employer had not overcome the presumption. The deputy
commissioner further held claimant would prevail, even without
the presumption, based on the totality of the evidence.
Employer appealed to the full commission the order denying
its motion for additional evidence, the order denying the motion
in limine, and the award. The commission affirmed the deputy
commissioner's evidentiary rulings and the award in favor of
claimant.
The commission found that "[t]here is no question that
[Keil] was in the course of his employment when he began leaving
the roof of the school to make a telephone call." This left
only the issue of whether Keil's fatal injuries were due to an
accident arising out of his employment. The commission held
that claimant was entitled to the presumption established in
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Southern Motor Lines v. Alvis, 200 Va. 168, 104 S.E.2d 735
(1958). Notwithstanding the presumption, the commission also
found claimant had presented sufficient evidence to sustain the
award even if the presumption did not apply.
The commission found that the medical evidence presented
consisted of two medical opinions that Keil died as a result of
the fall, and two opinions in which the physicians were unable
to state a cause of death and could only speculate. The
commission held the other evidence presented confirmed
the likelihood that [Keil] died as a result
of the fall. Individuals inside the school
heard Mr. Keil hit the concrete and heard
the ladder being displaced. There was loose
gravel [from the roof] at the foot of the
ladder. [In addition, Keil] did not
indicate pain in his chest either before or
after the accident, so it would be sheer
speculation to assume that he died from a
myocardial infarction unrelated to his fall.
Considering the totality of the evidence presented, the
commission affirmed the award of benefits to claimant. Employer
now appeals the commission's decisions to this Court.
II. EMPLOYER'S MOTION FOR ADDITIONAL EVIDENCE POST-HEARING
Employer contends it was denied due process by the deputy
commissioner's decision to deny its requests to depose
Dr. Collins and to have an expert cardiovascular physician
testify post-hearing. 2 For the following reasons, we hold
2
Related to this issue, employer poses the following
question in the "Questions Presented" section of its brief: "In
matters involving the refusal to allow the introduction of
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employer was not denied due process by the deputy commissioner's
denial of its post-hearing motions.
"[R]igid or technical rules of pleading, evidence, or
practice in the conduct of hearings shall not apply [in matters
before the commission] so long as the procedures adopted protect
the substantial rights of the parties." Sergio's Pizza v.
Soncini, 1 Va. App. 370, 376, 339 S.E.2d 204, 207 (1986). While
the requirements in administrative proceedings may be more
relaxed, "the commission must use procedures that 'afford the
parties minimal due process safeguards.'" WLR Foods, Inc. v.
Cardosa, 26 Va. App. 220, 227, 494 S.E.2d 147, 150 (1997)
(quoting Soncini, 1 Va. App. at 376, 339 S.E.2d at 207).
While proceedings before the commission must comply with
the requirements of due process, deputy commissioners generally
have broad discretion to adapt the conduct of hearings to the
circumstances of the case. See Kum Ja Kim v. Sportswear, 10
Va. App. 460, 470, 393 S.E.2d 418, 424 (1990). Because the
commission is permitted to place limitations on the evidence
that is submitted to it, so long as minimal due process
safeguards are met, we review the decision for an abuse of
relevant evidence should the Commission be required to give the
reasons for such refusal as opposed to summarily stating that
the Deputy Commissioner 'acted reasonably?'" Employer, however,
failed to present to this Court how it was prejudiced by the
commission's action. Moreover, as we hold below that the deputy
commissioner acted within his discretion, error, if any,
committed by the commission in disposing of the underlying issue
was harmless.
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discretion. See Daniel Constr. Co. v. Tolley, 24 Va. App. 70,
480 S.E.2d 145 (1997).
In the case at bar, claimant presented two very short
reports to the commission to be considered as evidence in the
case: Three questions answered by Dr. Waters and four questions
answered by Dr. Hagberg. These brief reports were submitted
prior to the June 21, 2000 hearing before the deputy
commissioner. Employer had previously submitted more extensive
medical reports from these same physicians, as well as from
Dr. Collins, but chose not to depose any of them.
At the June 21, 2000 hearing, employer did not object to
the introduction of the reports submitted by claimant.
Employer's only request was to leave the record open to receive
the depositions of Drs. Water and Hagberg. This request was
granted.
We hold that, under the circumstances of this case, the
deputy commissioner did not abuse his discretion when he refused
to permit employer to introduce additional rebuttal evidence.
The record indicates that the deputy commissioner left the
record open after the June 21, 2000 hearing for the sole purpose
of allowing employer to depose Drs. Waters, Hagberg and Hoffman.
That is all employer requested at the time of the hearing, when
the record normally would have closed. Had the employer desired
the record to remain open for other purposes it had the
opportunity to make that argument at the hearing, but it did not
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do so. The deputy commissioner only prohibited the generation
of additional evidence for which the record had not been kept
open. Moreover, employer failed to identify any specific
prejudice it suffered by virtue of the deputy commissioner's
ruling. Finally, employer failed to proffer any evidence from
Dr. Collins or its expert witness by which appellate review
could be made. See Tolley, 24 Va. App. at 79, 480 S.E.2d at
149.
For all the foregoing reasons, we find the deputy
commissioner did not abuse his discretion when he refused to
permit employer to introduce additional rebuttal evidence for
which the record had not been held open. See id.
III. DENIAL OF THE MOTION IN LIMINE
Employer also contends the deputy commissioner erred in
refusing to grant its motion in limine, which requested that
portions of Drs. Hoffman's and Waters' depositions be disallowed
on the basis that the testimony was, in employer's view,
speculative, inconclusive and not substantive evidence.
Assuming, without deciding, the deputy commissioner erred by
denying employer's motion in limine, we find any error was
harmless.
The commission did not rely on the alleged "speculative"
portions of Drs. Hoffman's and Waters' depositions. Instead,
the commission, recognizing potentially inconclusive and
speculative portions of the opinions, simply relied on those
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portions evidencing Dr. Hoffman's opinion, made to a reasonable
medical certainty, that Keil died as a result of closed head and
chest injuries, and Dr. Waters' opinion that Keil died as a
result of his fall, while recognizing Dr. Waters was unable to
determine the exact mechanism which triggered cardiac arrest.
The depositions were not used for other purposes and, therefore,
it was harmless error if the deputy commissioner received any
portions of the depositions that may be considered speculative.
See generally, Ferguson v. Commonwealth, 16 Va. App. 9, 427
S.E.2d 442 (1993); Lavinder v. Commonwealth, 12 Va. App. 1003,
407 S.E.2d 910 (1991) (en banc).
We, therefore, will not reverse the decision to deny the
motion in limine.
IV. THE FATAL INJURY AROSE OUT OF KEIL'S EMPLOYMENT
Employer also contests the commission's decision to award
benefits to claimant. It contends the commission erred in
finding the unexplained death presumption recognized in Southern
Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735, to be
applicable to the claim and in finding the evidence sufficient
to establish the fatal injury arose out of Keil's employment.
For the following reasons, we agree with employer's contention
that application of the Alvis death presumption was error.
However, we affirm the commission's award as we find the
evidence sufficient to establish Keil's death arose out of his
employment.
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Code § 65.2-101 requires a person who claims benefits under
the Workers' Compensation Act to prove an "injury by accident
arising out of and in the course of the employment." The
claimant must prove by a preponderance of the evidence that an
injury arose out of the employment. Marketing Profiles, Inc. v.
Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en
banc). "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).
An injury arises out of the employment
"'when there is apparent to the rational
mind upon consideration of all the
circumstances, a causal connection between
the conditions under which the work is
required to be performed and the resulting
injury. Under this test, if the injury can
be seen to have followed as a natural
incident of the work and to have been
contemplated by a reasonable person familiar
with the whole situation as a result of the
exposure occasioned by the nature of the
employment, then it arises "out of" the
employment.['"]
Baggett & Meador Cos. v. Dillon, 219 Va. 633, 637-38, 248 S.E.2d
819, 822 (1978) (citations omitted). Thus, "the arising out of
test excludes 'an injury which comes from a hazard to which the
employee would have been equally exposed apart from the
employment. The causative danger must be peculiar to the work,
incidental to the character of the business, and not independent
of the master-servant relationship.'" Chesterfield v. Johnson,
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237 Va. 180, 183-84, 376 S.E.2d 73, 75 (1989) (quoting United
Parcel Service v. Fetterman, 230 Va. 257, 258-59, 336 S.E.2d
892, 893 (1985)).
"The actual determination of causation is a factual finding
that will not be disturbed on appeal," if supported by credible
evidence. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688,
376 S.E.2d 814, 817 (1989); see Code § 65.2-706. However,
"[w]hether an injury arises out of the employment is a mixed
question of law and fact and is reviewable [de novo] by the
appellate court." Barbour, 8 Va. App. at 483, 382 S.E.2d at
305. Yet, unless we conclude that claimant failed to prove
Keil's fatal injuries arose out of his employment, as a matter
of law, the commission's finding is binding and conclusive upon
us. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699,
173 S.E.2d 833, 835 (1970).
A. THE ALVIS PRESUMPTION
In Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104
S.E.2d 735, the Supreme Court of Virginia acknowledged the
following presumption in certain cases involving an unexplained
death:
[W]here an employee is found dead as the
result of an accident at his place of work
or near-by, where his duties may have called
him during the hours of his work, and there
is no evidence offered to show what caused
the death or to show that he was not engaged
in his master's business at the time, the
court will indulge the presumption that the
relation of master and servant existed at
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the time of the accident and that it arose
out of and in the course of his employment.
Id. at 171-72, 104 S.E.2d at 738-39 (internal citations omitted)
(emphasis added).
In this case, the deputy commissioner found that the death
presumption articulated in Alvis applied and that employer had
not rebutted the presumption. The full commission, in affirming
the award, agreed with the deputy commissioner.
The commission's application of the Alvis death presumption
was in error. The presumption applies to those instances where
an employee "is found dead . . . at his place of work" and the
circumstances of death are unexplained. The presumption does
not apply to a case such as the one at bar, where Keil was not
found dead at his place of work, but rather suffered injuries in
an unexplained accident that later proved to be fatal.
To hold that the presumption applies in this case would
require a wide broadening of the presumption well beyond that of
any precedent from this Court or the Supreme Court of Virginia.
See Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380-81, 410 S.E.2d
646, 648 (1991). As the Supreme Court held in Helmes, such a
change in the parameters of the Alvis presumption is a policy
decision to be made, if at all, by the General Assembly.
Broadening the use of the presumption to
such an extent significantly alters the
jurisprudence of workers' compensation law.
This change, we believe, is more properly a
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matter of policy, a prerogative of the
legislative branch of government.
Id. at 381, 410 S.E.2d at 648.
In the forty-four years since the Alvis decision, the
General Assembly has not chosen to expand the presumption beyond
its original parameters. Accordingly, we find the commission's
application of the presumption was error.
B. PREPONDERANCE OF THE EVIDENCE
Our holding, however, does not require the commission's
award to be reversed because the commission, while incorrectly
applying the Alvis death presumption, correctly found claimant
established that Keil's fatal injuries arose out of his
employment without reliance on the presumption:
Our finding that the death presumption
applied is not necessary to our finding in
this case, however, because the evidence as
a whole preponderates that [Keil] died as a
result of a fall of approximately fifteen
feet onto concrete as he was attempting to
descend from the roof where he was working.
The evidence supports the commission's finding that the
fatal injuries suffered by Keil arose out of his employment. 3
While no one witnessed the fatal incident, claimant presented
the death certificate, which provides that Keil's death was due
to closed head and chest injuries. Dr. Hoffman, the medical
examiner, testified, to a reasonable degree of medical
3
Employer does not contest that Keil was "in the course of
his employment" when he left the workstation to descend from the
roof.
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certainty, that Keil died as a result of closed head and chest
injuries sustained in the fall. Dr. Waters also offered his
opinion, "I believe he died from the fall." In addition, there
is non-expert circumstantial evidence supporting the
commission's finding, including the fact that people heard the
ladder being displaced, the fact that loose gravel from the roof
was found on the ground next to Keil, the fact that Keil was
feeling well prior to the accident and he did not complain prior
to or after the accident of chest pain. There is no evidence
that Keil suffered a myocardial infarction.
The claimant, therefore, presented evidence which, directly
or by inference, established that the fatal injuries arose out
of Keil's employment as a roofer. "'[A]n accident arises out of
the employment when it is apparent to a rational mind, under all
attending circumstances, that a causal connection exists between
the conditions under which the work is required to be performed
and the resulting injury.'" Smithfield Packing Co., Inc. v.
Carlton, 29 Va. App. 176, 181, 510 S.E.2d 740, 742 (1999)
(citation omitted)).
The commission determined this evidence to be credible.
"Issues of weight and credibility are uniquely within the
province of the commission, and we will not substitute our
judgment for that of the trier of fact." Goodyear Tire & Rubber
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Co. v. Harris, 35 Va. App. 162, 171, 543 S.E.2d 619, 623 (2001)
(citations omitted).
Additionally, there is no credible evidence in the record
to contradict this determination. Employer did not present
evidence to rebut claimant's credible evidence. It simply
presented Dr. Waters' opinion that Keil did not die as a result
of his head injuries. Dr. Waters was unable to determine a
cause of death and did not opine as to the possibility that Keil
died as a result of the closed head and chest injuries as
determined by the medical examiner. It presented Dr. Hagberg's
medical opinion that he was unable to determine the cause of
death, but in which he proffered a guess that Keil "most likely"
died as the result of a myocardial infarction unrelated to his
fall. Yet, Dr. Hagberg admitted this theory was speculative and
not made with a reasonable degree of medical certainty.
We hold, therefore, that the commission's finding that
claimant established that her husband was fatally injured as a
result of a fall which arose out of his employment as a roofer
is supported by credible evidence in the record and reasonable
inferences drawn from that evidence. The commission's decision
is affirmed.
Affirmed.
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