COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
PAUL JOHNSON
OPINION BY
v. Record No. 2290-01-1 JUDGE ROBERT P. FRANK
MARCH 26, 2002
PAUL JOHNSON PLASTERING AND
NATIONAL SURETY CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Jean M. McKeen (Robert E. Walsh; Rutter,
Walsh, Mills & Rutter, on briefs), for
appellant.
Daniel E. Lynch (John T. Cornett, Jr.;
Williams & Lynch, on brief), for appellees.
Paul Johnson (claimant) appeals a decision of the Workers'
Compensation Commission (commission) denying his claim for
permanent total disability for injury to the brain under Code
§ 65.2-503(C). Claimant contends the commission erred (1) in
finding that his filing for "head" injury was not a sufficient
filing for injury to the brain, (2) in holding that, even if
claimant filed a sufficient claim for injury to the brain, he
waived that claim by executing a memorandum of agreement, and
(3) in finding that claimant's "brain injury" was not a
compensable consequence of the original work-related accident.
For the reasons stated below, we affirm in part and remand in
part.
FACTS
Claimant worked for employer as a plasterer and drywall
hanger. On January 15, 1990, while working on stilts, claimant
fell, hitting his right arm and forehead. At the hospital,
claimant was diagnosed with a broken wrist. He was referred to
Dr. Thomas Meade for further treatment of his wrist. He also
was handed two sheets, labeled "Head Injury" and "Wound Care,"
but the laceration to his eyebrow received no medical treatment
beyond cleaning.
The wrist injury was particularly severe, and claimant
developed depression. Several months after the fall, claimant
began complaining of headaches, back and neck pain, blurred
vision, and lack of alertness. Claimant returned to work on
February 4, 1991, but only temporarily.
Approximately a year after the accident, claimant began
receiving treatment from Dr. Jeremy Stowell for depression
related to his wrist injury. At that time, Dr. Stowell did not
believe brain damage contributed to claimant's condition.
Dr. Raymond Toriano, who also treated claimant, opined that
claimant's problems were not related to a head injury, but
developed from depression. A cranial CT scan in January 1992
found no abnormalities in claimant's brain.
Instead of improving, claimant's condition deteriorated.
In 1995, Dr. Stowell began to believe claimant suffered from
cognitive defects and "dementia due to head injury."
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Dr. Stowell postulated that depression was causing structural
changes at the cellular level of claimant's brain, preventing
him from working. Dr. Robert Hansen, who evaluated claimant,
testified that none of the medical records objectively indicated
claimant suffered from a brain injury. Dr. Neil Pugach, who
also examined claimant, concluded with "much more than a
reasonable degree of certainty that his cognitive symptoms and
signs have no direct relationship whatsoever to the injury he
sustained on January 15, 1990."
Employer filed a timely First Report of Accident with the
commission. Claimant then sent a letter on November 27, 1990,
notifying the commission and employer of the "Nature of Injury"
from the January accident as "rt. wrist, head, back, left leg
and foot."
The parties reached a settlement on this claim and executed
a memorandum of agreement, using a form provided by the
commission. The only injury listed on the form was "arm." The
agreement included temporary total incapacity benefits,
temporary partial incapacity benefits, and permanent partial
disability benefits. The commission approved the agreement, as
well as supplemental agreements relating to claimant's need for
psychiatric treatment, on November 21, 1991.
On February 13, 1992, claimant filed for a change of
condition award, based on his inability to continue working. He
requested temporary total disability payments from November 18,
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1991 and continuing. The commission approved a supplemental
memorandum of agreement regarding this claim on September 23,
1992, and approved another supplement on January 26, 1993. A
January 25, 1993 letter from employer to the commission
indicated "the parties have resolved all matters in
controversy."
Claimant sent a letter to the commission on May 1, 1999,
seeking a "hearing for permanent total disability from August
27, 1999 to the present and continuing. Pursuant to Section
65.2-503 C(3) Claimant has suffered an 'injury to the brain
which is so severe as to render the employee permanently
unemployable in gainful employment.'" Claimant's temporary
total disability payments were due to terminate on August 26,
1999.
The deputy commissioner denied this claim, reasoning that
only brain injuries arising directly out of an accident are
compensable, noting that claimant failed to file an appropriate
original claim for this injury, and finding that the evidence
did not support a claim for injury to the brain. The full
commission affirmed this decision, finding the claim for "brain
injury" was not filed, that the memorandum of agreement
constituted waiver of any other claims, and that the claim was
not compensable as a consequence of the original injury.
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ANALYSIS
Claimant argues he is entitled to permanent total
disability benefits based on an injury to his brain, pursuant to
Code § 65.2-503(C)(3). 1 He asserts two theories in support of
his claim. First, he alleges injury to his brain occurred when
he fell at work in January 1990. Alternatively, he alleges a
brain injury developed after January 1990 and is a compensable
consequence of the depression that resulted from his wrist
injury. Therefore, we must determine whether a claim exists
under either of these theories. 2
In considering these arguments, we view the evidence in the
light most favorable to employer, the prevailing party below.
See 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." James v. Capitol Steel Constr. Co., 8 Va. App. 512,
515, 382 S.E.2d 487, 488 (1989). However, the commission's
1
Employer argues claimant did not prove he has an injury to
the brain as described in Code § 65.2-503(C). The full
commission, however, did not address whether the evidence was
sufficient to prove "injury to the brain which is so severe as
to render the employee permanently unemployable in gainful
employment" as required by Code § 65.2-503(C). For this reason,
and because alternative grounds exist for our decision, we do
not address sufficiency of the evidence to prove this injury.
2
A claim of injury arising out of the original accident "is
quite different" from a claim based on the development of a
condition subsequent. Shawley v. Shea-Ball Constr. Co., 216 Va.
442, 445, 219 S.E.2d 849, 852 (1975).
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application of statutory and case law is not binding on this
Court. Robinson v. Salvation Army, 20 Va. App. 570, 572, 459
S.E.2d 103, 104 (1995).
A. ORIGINAL INJURY
Clearly, an immediate, original injury to the brain arising
out of and in the course of employment is compensable under the
Virginia Workers' Compensation Act (the VWCA). See Code
§§ 65.2-100 et seq. Employer argues, however, that claimant did
not properly file such a claim, and, alternatively, that
claimant waived the claim when he signed a memorandum of
agreement for benefits awarded to compensate him for an arm
injury that occurred during the 1990 fall. We find claimant did
not properly file a claim for injury to the brain. 3
To perfect a claim for benefits under the VWCA, an employee
must file notice of the claim with the commission within two
years of the accident. Code § 65.2-601. This notice must
include all specific injuries an employee contends are
compensable. Shawley v. Shea-Ball Constr. Co., 216 Va. 442,
446, 219 S.E.2d 849, 853 (1975); Garcia v. Mantech Int'l Corp.,
2 Va. App. 749, 753, 347 S.E.2d 548, 551 (1986). "Timely filing
of an original claim is jurisdictional, and a claimant bears the
burden of proving his claim is timely filed." Massey Builders
3
Because lack of notice prohibits any award for an original
"injury to the brain" claim, we need not address whether the
memorandum of agreement constituted waiver of this claim.
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Supply Corp. v. Colgan, 36 Va. App. 496, 502, 553 S.E.2d 146,
149 (2001).
Claimant argues that his listing of "head" as an injury in
his letter to the commission meets this filing requirement for a
claim of permanent injury to the brain. He conceded at argument
that the entire record should be examined to determine whether
employer received sufficient notice. The commission held
claimant did not file a claim for injury to the brain within the
statutory time frame. We agree with the commission.
The purpose of filing with the commission is to provide all
parties with notice of the potential issues in a case. Shawley,
216 Va. at 446, 219 S.E.2d at 852-53. While we interpret
provisions of the VWCA liberally, see Garcia, 2 Va. App. at 754,
347 S.E.2d at 551; Barnett v. D. L. Bromwell, Inc., 6 Va. App.
30, 34, 366 S.E.2d 271, 272 (1988), the evidence in this record
is not sufficient to prove such notice was provided here.
Claimant's initial filing with the commission on November
27, 1990, listed "Nature of Injury" from the January 15, 1990
accident as "rt. wrist, head, back, left leg and foot." 4
Claimant admits the terms "head" and "brain" are not synonymous.
The record indicates claimant had a laceration to his left
eyebrow as a result of the accident, but this injury was never
medically treated. The medical reports accompanying his filing
4
Claimant does not request benefits based on any injuries
to his back, leg, or foot.
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pursuant to Commission Rules 1.1(B) and 1.3 do not mention an
injury to the brain.
The medical evidence did include discussions of depression
and some related psychiatric and cognitive problems. Reports
submitted in relation to the original claim discuss severe
anxiety, myofascial pain syndrome, concentration and attention
span problems, tension headaches, pains throughout the body,
visual and auditory hallucinations, and decreased sleep and
energy levels. Claimant also suffered stress related to
problems at home and at work. Employer paid for counseling and
treatment of these mental problems as subsequent conditions
arising out of the wrist injury.
Claimant argues that these medical reports of cognitive
problems placed employer on notice of an injury to the brain.
However, none of the medical evaluations conducted within two
years of the accident mention any physical trauma to the brain.
The only mention of a head injury, excluding the initial
emergency report, appears when a doctor notes claimant could not
have fallen on his tail bone in the accident as he had a
laceration to his head from the fall. A cranial CT scan of
claimant taken on January 20, 1992, "was a 'normal study.'" A
March 6, 1992 report indicated claimant's headaches were of a
"muscle constriction type . . . due to 1/15/90 injury
(indirectly)." Another 1992 medical report indicates the
headaches were "secondary to post injury."
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While employer clearly knew claimant had mental problems,
nothing suggested the cause of these problems was an injury to
the brain that occurred during the January 1990 fall. The
contemporary medical records appear to discount the possibility. 5
These facts do not support claimant's contention that he filed
notice of an injury to the brain within the two-year statute of
limitations established by Code § 65.2-601.
Additionally, claimant did not specifically mention any
allegation of permanent and total injury in his initial filing
of this claim. He simply made a claim "for all benefits to
which he is or may be entitled pursuant to the Virginia
Workmen's Compensation Act." This lack of detail is
particularly important given the exposure an employer faces with
a claim of permanent and total injury under Code § 65.2-503(C),
which can entitle an employee to benefits for life as opposed to
the normal limit of payments for 500 weeks. Code § 65.2-500(D);
Code § 65.2-518.
The record also contains a letter sent by employer on
January 25, 1993, to the commission and to claimant's attorneys,
"confirm[ing] that the parties have resolved all matters in
controversy." The commission's order, entered the following
5
Medical evaluations suggesting an injury to the brain
occurred on January 15, 1990 are important to other issues in
the case; however, medical evaluations made years after the
accident cannot be used to prove notice within the statutory two
years.
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day, notes, "the parties have resolved the matters in
controversy." Claimant filed no response to suggest he
disagreed with this conclusion.
Additionally, the memorandum of agreement executed by the
parties did not mention an injury to the brain, but instead
described the "[n]ature of injury" as "claimant slipped and fell
from drywall slat and injured arm." This characterization of
the injury indicates employer believed the only injury from the
fall was to the arm.
Use of the single word, "head," generally is not sufficient
filing of a claim for injury to the brain, especially where the
only evidence to suggest this type of injury is a minor
laceration to the eyebrow. 6 See Shawley, 216 Va. at 446-47, 219
S.E.2d at 853 (finding notice of an injury to the left ankle and
right hip was insufficient filing for injuries to an employee's
back and right ankle). Contrast Massey Builders, 36 Va. App. at
504-05, 553 S.E.2d at 150-51 (examining various documents,
including a letter and medical records, and concluding that an
injured employee did timely file his claim for benefits).
6
We do not intend to establish a bright line rule for other
cases. In the appropriate context, a listing of "head injury"
may be sufficient to provide notice. However, the facts do not
support such a finding here, given the medical reports, the
memorandum of agreement, and the letter referencing a full
settlement of this case. The record includes no evidence that
employer was informed of the possibility of a brain injury claim
until over two years after the accident. Nothing in these
parties' negotiations suggests they ever considered such a claim
was possible.
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Nothing in the record provided notice that injury to the brain
was a possible claim in this case. The initial claim letter,
the medical reports, the memorandum of agreement, the settlement
letters -- none of these documents indicate that the employer
was informed of an injury to the brain.
The requirements of Code § 65.2-601 were not met. To hold
otherwise would effectively vitiate the filing requirement.
B. COMPENSABLE CONSEQUENCE
Claimant also implicitly makes a change of condition claim
under Code § 65.2-708 by arguing that his brain injury developed
as a consequence of his depression and, therefore, is a
compensable consequence of the original injury to his arm.
Claimant argues that Daniel Construction Co. v. Tolley, 24 Va.
App. 70, 480 S.E.2d 146 (1997), allows award of benefits in such
a case. The commission, however, found Daniel Construction
prevented an award based on injury to the brain that develops
subsequent to an accident. 7 We agree with claimant's
interpretation of Daniel Construction.
7
The commission also relied upon Elgnawey v. Northern
Virginia Steel Corp., VWC File No. 131-62-48 (April 14, 1999)
(unpublished), which was affirmed in an unpublished opinion of
this Court. See Elgnawey v. Northern Virginia Steel Corp., Rec.
No. 1144-99-4 (Va. Ct. App. March 21, 2000). An unpublished
opinion of this Court is not "to be cited or relied upon as
precedent except for the purpose of establishing res judicata,
estoppel or the law of the case." Grajales v. Commonwealth, 4
Va. App. 1, 2 n.1, 353 S.E.2d 789, 790 n.1 (1987) (per curiam en
banc). However, "a court or the commission does not err by
considering the rationale and adopting it to the extent it is
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Tolley, who was employed by Daniel Construction Company,
suffered post-traumatic stress disorder as the result of an
unannounced explosion during his work in a concrete factory.
Id. at 73, 480 S.E.2d at 146. The commission awarded him
permanent total disability benefits under a former version of
the VWCA. Id. at 75, 480 S.E.2d at 147-48.
This Court upheld the award "because the medical evidence
in this case proved that claimant suffered an 'injury' that
resulted in 'structural changes' to the brain." Id. at 76, 480
S.E.2d at 148. The Court found the evidence supported the
commission's finding that Tolley "suffered an 'injury'" as
"[p]ost-traumatic stress disorder is a compensable injury if
caused by either a physical injury or an obvious sudden shock or
fright arising in the course of employment." Id. at 77, 480
S.E.2d at 148 (emphasis added). The Court also found evidence
"of actual physical changes to claimant's brain caused by
post-traumatic stress disorder" in a doctor's explanation that
the disorder "results in irreversible structural changes within
the neurons in the brain." Id. at 77-78, 480 S.E.2d at 149
(emphasis added).
Clearly, Daniel Construction affirmed an award of permanent
total disability when the brain injury developed as a subsequent
condition of the original injury. The post-traumatic stress
persuasive." Fairfax County Sch. Bd. v. Rose, 29 Va. App. 32,
39 n.3, 509 S.E.2d 525, 528 n.3 (1999).
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disorder suffered by Tolley was not the "injury to the brain."
Instead, the disorder led to structural changes in the brain
that amounted to a permanent injury to the brain. Claimant
correctly reads Daniel Construction as allowing compensation for
injury to the brain under Code §§ 65.2-503(C) and 65.2-708(A)
when the injury does not arise on the day of the accident, but
instead develops as a direct consequence of an initial injury,
i.e., when an initial injury, such as post-traumatic stress
disorder, leads directly to brain injury.
In this case, the commission did not make any factual
findings regarding injury to the brain as a compensable
consequence. On remand, the commission must determine whether
claimant proved he suffered an injury to the brain and, if he is
so injured, whether a causal connection exists between his
employment and the injury.
Because claimant did not perfect his claim of an original
injury arising out of employment, we affirm the commission's
denial of permanent total disability benefits on this ground.
However, we remand the claim for permanent benefits under the
theory of compensable consequences for factual findings by the
commission.
Affirmed in part and
remanded in part.
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