COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
FOOD DISTRIBUTORS AND
CENTURY INDEMNITY COMPANY
OPINION BY
v. Record No. 1206-96-4 JUDGE JOHANNA L. FITZPATRICK
MAY 13, 1997
ESTATE OF KENNETH MERRILL BALL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Douglas Seymour (Law Offices of E. Wayne
Powell, on brief), for appellants.
Kermit L. Racey (Racey & Racey, on brief),
for appellee.
Food Distributors and its insurer (collectively referred to
as "employer") contend that the Workers' Compensation Commission
("commission") erred in finding that (1) Kenneth Merrill Ball's
(decedent) death by suicide was causally related to his
compensable September 5, 1989 injury by accident; and (2) Code
§ 65.2-306(A)(1) did not bar compensation for the decedent's
suicide. We conclude that the suicide was causally related to
the earlier injury and that compensation was not barred.
I. BACKGROUND
On September 5, 1989, decedent suffered a compensable injury
to his left shoulder when he tripped over a phone cord in his
employer's office. His claim was accepted by employer and he
underwent successive surgeries to his shoulder in October 1989,
February 1990, and October 1990. Ultimately, decedent was
diagnosed with post-traumatic impingement syndrome and with a
permanent thirty-three percent "impairment of the upper extremity
or twenty percent of the whole person." Despite the three
operations, rehabilitation, and medication, decedent remained
incapacitated, in pain, and depressed.
Following the injury, due to his chronic pain, decedent was
unable to work full time or to engage in simple, repetitive
tasks. He also suffered from insomnia. The pain began
immediately after his injury and continued throughout the rest of
his life. Decedent described his pain as an aching in his left
shoulder, accompanied by the sensation of pins and needles and
numbness throughout his left arm and hand. Decedent's inability
to work and to provide for his family led to low self-esteem and
depression. He went from being an "outgoing, vibrant person"
prior to his injury to becoming "someone who was very morose,
moody, and at times angry." Decedent's treating orthopedic
surgeon, Dr. Thomas W. Daugherty, referred decedent to Dr.
Bernard J. Lewis for psychological counseling.
Before he was seen by Dr. Lewis, decedent's depression
worsened, and he attempted suicide in December 1990. He was
hospitalized at the Winchester Medical Center and treated by Dr.
Bob Lizer. Following his release from the hospital, decedent
began individual and group counseling with Dr. Lewis, who became
his treating psychologist at the Chronic Pain Program of
Psychological Health Associates, Ltd. Decedent continued
treatment with Dr. Lewis until his death. Decedent continually
2
took pain medication and antidepressants following his first
suicide attempt. Five years later, decedent committed suicide by
taking a drug overdose. He was fifty-six at the time of his
death, and he is survived by his wife, Mrs. Ball, and two
daughters.
Decedent's estate and widow (claimant) filed a claim for
benefits with the commission on February 22, 1995 and requested
death and other benefits pursuant to the Workers' Compensation
Act. In an opinion dated April 16, 1996, the commission relied
on Dr. Lewis' opinion regarding causation and the doctrine of
compensable consequences to find decedent's action outside the
scope of the bar of Code § 65.2-306(A)(1). The commission
reviewed the history of decedent's injury, pain, depression, and
treatment, as well as evidence presented by Dr. Lewis, Mrs. Ball,
Dr. Daugherty, and Dr. Bruce M. Smoller. Based on this review,
the commission determined that:
From this record the Deputy Commissioner
concluded that the evidence preponderates in
establishing a direct and proximate causal
connection between the decedent's September
5, 1989, industrial accident and his death on
February 12, 1995. We agree. Dr. Lewis has
been the treating psychologist since 1990.
His extensive reports over the course of his
treatment document overwhelmingly the fact
that the most significant stressor in the
claimant's life was his "intractable pain"
resulting in incapacity and depression. Dr.
Lewis' unequivocal opinion linking the
decedent's death to his chronic pain and
resulting depression is supported repeatedly
by Dr. Lewis' ongoing assessments. Dr.
Smoller's opinion attributing the depression
and suicide to other factors has minimal
support in the record.
3
The employer argues that Code
§ 65.2-306(A)(1) bars compensation for
suicide. However, as the Deputy Commissioner
noted, Mr. Ball's industrial accident in 1989
was not self-inflicted. His suicide was a
consequence of the depression resulting from
the compensable accident. Therefore, the
claim is not barred by this section of the
Act.
Employer appeals the commission's award of benefits to claimant.
II. DOCTRINE OF COMPENSABLE CONSEQUENCES
Employer argues that the commission erred in awarding
benefits to claimant because decedent's suicide was an
independent and willful act that barred compensation.
Code § 65.2-306(A)(1) provides in pertinent part that "[n]o
compensation shall be awarded to the employee or his dependents
for an injury or death caused by: (1) The employee's willful
misconduct or intentional self-inflicted injury." (Emphasis
added.) Employer's argument presents an issue not yet addressed
by this Court.
It is undisputed that decedent's initial injury in 1989 was
compensable. It is also undisputed that "[t]he doctrine of
compensable consequences is well established and has been in
existence for many years" in Virginia. Williams Industries, Inc.
v. Wagoner, 24 Va. App. 181, 186, 480 S.E.2d 788, 790 (1997).
This doctrine, also known as the chain of 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
4
intervening cause attributable to the [employee's] own
intentional conduct, then the subsequent [condition] should be
compensable.'" Leadbetter, Inc. v. Penkalski, 21 Va. App. 427,
432, 464 S.E.2d 554, 556 (1995) (quoting American Smelting &
Refining Co. v. Industrial Comm'n, 544 P.2d 1133, 1135 (Ariz. Ct.
App. 1976)). Moreover,
[o]nce an injury is compensable, the employer
is liable for the full extent of the injury:
the fact that complications arise or the
injury worsens does not alter the compensable
nature of the injury. "When the primary
injury is shown to have arisen out of and in
the course of employment, every natural
consequence that flows from the injury
likewise arises out of the employment, unless
it is the result of an independent
intervening cause attributable to claimant's
own intentional conduct."
Imperial Trash Service v. Dotson, 18 Va. App. 600, 606-07, 445
S.E.2d 716, 720 (1994) (quoting Morris v. Badger Powhatan/Figgie
Int'l, Inc., 3 Va. App. 276, 283, 348 S.E.2d 876, 879 (1986)).
"In other words, where a causal connection between the initial
compensable injury and the subsequent injury is established, the
doctrine of compensable consequences extends the coverage of the
Workers' Compensation Act to the subsequent injury because the
subsequent injury 'is treated as if it occurred in the course of
and arising out of the employee's employment.'" American
Filtrona Co. v. Hanford, 16 Va. App. 159, 162-63, 428 S.E.2d 511,
513 (1993) (quoting Bartholomew Drywall Co. v. Hill, 12 Va. App.
790, 793-94, 407 S.E.2d 1, 3 (1991)).
Although we have long accepted the doctrine of compensable
5
consequences, we have yet to examine its application in the
context of death by suicide. However, we are guided by the
decisions of our sister states that have considered this issue.
Initially, we note the West Virginia Supreme Court of Appeals'
observation that "[m]ost [suicide] cases . . . present the same
pattern of facts: a severe, or extremely painful, or hopelessly
incurable injury, followed by a deranged mental state ranging
from depression to violent lunacy, followed in turn by suicide."
Hall v. State Workmen's Compensation Commissioner, 303 S.E.2d
726, 728 (W.Va. 1983). In addressing such circumstances, other
states generally apply one of two rules. 1
Under the minority rule, known as the rule in Sponatski's
Case or the "voluntary wilful choice test," the requisite mental
derangement is defined as:
[A]n insanity of such violence as to cause
the victim to take his own life through an
uncontrollable impulse or in a delirium of
frenzy "without conscious volition to produce
death, having a knowledge of the physical
consequences of the act."
1A Arthur Larson, Workmen's Compensation Law § 36.21, at
1
Two other rules have been developed, the New York rule and the
English rule. The New York rule "is generally a chain of
causation test but with the possible requirement of physical
damage to the brain itself." State v. Ramsey, 839 P.2d 936, 940
(Wyo. 1992). The English rule states that the "insanity must be
the direct result of the injury itself or the shock produced by
it, and not an indirect result caused by brooding over the injury
and its consequences." Id. As these two rules are rarely, if
ever, applied, we do not address them for the purposes of this
opinion.
6
6-162 - 163 (citation omitted) (emphasis added). Additionally,
this rule proscribes the following behavior:
[W]here the resulting insanity is such as to
cause suicide through a voluntary wilful
choice determined by a moderately intelligent
mental power which knows the purpose and the
physical effect of the suicidal act, even
though choice is dominated and ruled by a
disorderly mind, then there is a new and
independent agency which breaks the chain of
causation arising from the injury.
Id. This minority rule is steadily losing ground. 2
The rule adopted by the majority of states is known as the
"chain of causation" rule which provides that suicide is
compensable if the injury produces mental derangement and the
mental derangement produces suicide. Larson, supra § 36.00
at 6-160.
This theory focuses not upon any
particularized state of mind or mental
disease, but upon the causal link between a
work-related injury and ultimate death by
suicide. The rationale . . . of the rule is
grounded in advances in modern psychiatry and
a recognition that volition may be negated by
a deterioration in mental health short of
insanity or derangement. Where a direct
causal link can be established between a
work-related injury and a disturbance of the
mind which leads to suicide, compensation
will not be barred.
Wells v. Harrell, 714 S.W.2d 498, 501 (Ky. Ct. App. 1986).
2
The Sponatski case itself was reversed legislatively, as
Massachusetts amended its statute to provide for compensation when
"due to the injury, the employee was of such unsoundness of mind
as to make him irresponsible for his act of suicide." Larson,
supra § 36.21 at 6-162 (citation omitted).
7
Applying this rationale, the Supreme Court of Oklahoma held
that the applicable statute did not preclude payment of death
benefits to the surviving spouse and dependents of an injured
worker who committed suicide after incurring a work-related
injury. See Stroer v. Georgia Pacific Corporation, 672 P.2d 1158
(Okla. 1983). 3 In Stroer, a factually similar case, decedent
injured his shoulder. Despite surgery and extensive therapy, he
never regained the full use of his shoulder. Approximately
eighteen months following his injury, decedent shot himself. His
widow, daughter, best friend, and attending physician testified
that after the accident, decedent became unhappy, depressed,
antisocial and unstable, and that his depression was caused by
his inability to continue to work, earn a living, or be
physically active. Id. at 1160. As in the instant case, the
employer in Stroer presented the testimony of an expert witness,
who formed his opinion based on his review of decedent's medical
records without ever having seen the decedent. The expert opined
that it was possible that decedent's depression was caused by
factors other than his injury. Id. at 1160-61.
The court disagreed. It analyzed the statute denying
benefits for an employee's intentionally self-inflicted injury,
and observed that "[t]he majority of jurisdictions whose workers'
3
The statute allowed compensation for the work-related death of
an employee "except where the injury is occasioned by the willful
intention of the injured employee to bring about injury to himself
. . . ." Id. at 1160.
8
compensation statutes contain an exclusion for wilful or
intentional injury have adopted the chain of causation test as
the criterion for interpreting the term 'wilful', 'purposeful' or
'intentional.'" The court then articulated the chain of
causation rule in detail:
[A]n employee's death by suicide is
compensable if the original work-related
injuries result in the employee's becoming
dominated by a disturbance of mind directly
caused by his/her injury and its
consequences, such as extreme pain and
despair, of such severity to override normal
or rational judgment. The act of suicide is
not an intervening cause of death and the
chain of causation is not broken in cases
where the incontrovertible evidence reflects
that, but for the injury, there would have
been no suicide. A suicide committed under
these circumstances cannot be held to be
intentional even though the act itself may be
volitional. The chain of causation rule
places the burden on the claimant to prove by
a preponderance of the evidence that there
was an unbroken chain of causation between
the compensable injury, the disturbance of
mind, and the ultimate suicide. The direct
causal connection between the work-related
injury and the suicide must not be
overpowered and nullified by influences
originating solely outside the employment.
Id. at 1161. Accordingly, the court affirmed the award to
decedent's widow. 4 See also Jenkins v. Recchi America, 658 So.2d
4
The jurisdictions that have adopted the chain of causation
rule have excluded the requisite behavior from the definition of
"willful" or "intentional" in order to allow recovery.
Additionally, in State v. Ramsey, 839 P.2d 936 (Wyo. 1992), the
Supreme Court of Wyoming analyzed the issue of whether a suicide
could become a compensable event for workers' compensation
coverage. The court employed the chain of causation test "as the
predominating principle on this subject within the volume of
appellate cases" and decided the suicide was compensable. The
court began its analysis by examining the statutory provision that
9
157 (Fla. 1995) (finding that suicide was not willful within the
meaning of the statute; thus, it was compensable); Wells v.
Harrell, 714 S.W.2d 498, 501 (Ky. Ct. App. 1986) ("[w]here a
direct causal link can be established between a
work-related injury and a disturbance of the mind which leads to
suicide, compensation will not be barred"); Campbell v. Young
Motor Co., 684 P.2d 1101, 1103 (Mont. 1984) (finding a causal
connection; stating that "the injury and the post-injury trauma,
mental as well as physical, may take a path anticipated by no
one, but nonetheless [be] traceable to the injury itself");
Schell v. Buell ECD Co., 690 P.2d 1038, 1042 (N.M. Ct. App. 1983)
("once causation has been established, . . . the act of suicide
cannot then said to be wilful or intentional within the meaning
of the statute"); Hall v. State Workmen's Compensation
excluded from the definition of compensable injury "the employee's
willful intention to injure or kill himself or another." Finding
that "[t]he concept that ties the causal relationship, unbroken
chain, cases together, is that the act causing death was an
intervening act but not an intervening cause," the court adopted
the majority rule as the "most logical and supported by the
current weight of persuasive precedent." Id. at 940.
In a similar case, Globe Security Systems Co. v. Workmen's
Compensation Appeal Board, 544 A.2d 953 (Pa. 1988), the court
focused on the statutory language that "no compensation shall be
paid when the . . . death is intentionally self inflicted . . . ."
The Supreme Court of Pennsylvania determined that the word
"'[i]ntentionally' is a restrictive word which limits the word
which follows it . . . . It is patently clear, on statutory
construction alone, that it was not the legislative intent to
render all self-inflicted deaths noncompensable, but only those
that were intentionally self-inflicted." Id. at 956. The court
adopted the chain of causation test rather than the Sponatski
test, finding it to be "consistent with the humanitarian purpose
of the Pennsylvania Workmen's Compensation Act, as the law of
[the] Commonwealth." Id. at 957.
10
Commissioner, 303 S.E.2d 726 (W.Va. 1983) (employee's suicide is
compensable provided injury sustained arose in the course of and
resulted from covered employment). See also Jackson Mental
Health Center v. Lambie, 898 S.W.2d 479, 482-83 (Ark. Ct. App.
1995) (allowing compensation for suicide caused by stress rather
than by physical injury).
Additionally, the commission has followed this rationale in
deciding suicide cases. See, e.g., Confer v. Arban & Carosi,
Inc., 63 O.I.C. 66 (1984) (a case in which the issues were
whether decedent's suicide was statutorily barred and whether the
suicide was caused by decedent's initial injury.) 5 In Confer,
the commission adopted the majority rule:
[T]he appropriate test to be adopted in
Virginia is that designated as the
chain-of-causation rule, wherein where the
injury and its consequences directly result
in the worker's loss of normal judgment and
domination by a disturbance of the mind
causing the suicide, his suicide is
compensable, with a suicide committed by the
worker suffering from this degree of
disturbance not to be considered "willful" or
an "intentional" injury even though the
action is volitional since the suicide
relates back to the original injury rather
than existing independently of the injury.
Id. at 80. Additionally, the commission explained as follows:
[W]e agree with the basic tenet behind those
cases adhering to the chain of causation,
that recent psychiatric advances point to the
5
This case was decided under Code § 65.1-38, which read that
"[n]o compensation shall be allowed for an injury or death: (1)
Due to the employee's willful misconduct, including intentional
self-inflicted injury . . . ."
11
fact that the consequences of an accidental
injury can be so devastating that they
influence the employee's mind to the point
that the employee understands the
consequences of the act of destruction but
the employee is unable to resist the impulse
to take his own life. Under such
circumstances we do not find that the act is
independent of the accident nor that it is
willful within the meaning of [the statute].
Id. at 80-81.
"'It is well settled that where the construction of a
statute has been uniform for many years in administrative
practice, and has been acquiesced in by the General Assembly,
such construction is entitled to great weight . . . .'" Holly
Farms v. Carter, 15 Va. App. 29, 42-43, 422 S.E.2d 165, 172
(1992) (quoting Dan River Mills, Inc. v. Unemployment Comm'n, 195
Va. 997, 1002, 81 S.E.2d 620, 623 (1954)). The commission
consistently has affirmed its adoption of the chain of causation
rule in suicide cases. See, e.g., Ball v. Food Distributors, VWC
File No. 1447752 (April 16, 1996); Stone v. Formex, Inc., VWC
File No. 1652559 (May 15, 1996); Wheeler v. Pomalco Corporation,
VWC File No. 1529329 (October 7, 1992); Confer v. Arban & Carosi,
Inc., 63 O.I.C. 66 (1984). Accordingly, we find both the
commission's construction of the statute and the rationale of the
majority rule compelling.
III. FINDING OF CAUSATION
Lastly, employer argues that the commission relied on less
than credible evidence in finding that decedent's suicide was a
compensable consequence of his original industrial accident.
12
Specifically, employer contends that the commission improperly
relied on Dr. Lewis' opinion and disregarded the opinion of Dr.
Smoller. Additionally, employer asserts that the evidence failed
to substantiate that decedent suffered a "loss of normal judgment
and domination by a disturbance of the mind."
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). We
will not disturb the factual determination of causation if
credible evidence supports the finding, even if the record
contains evidence to the contrary. Ingersoll-Rand Co. v. Musick,
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989); Wagner Enters.,
Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Additionally, "[q]uestions raised by conflicting medical opinions
will be decided by the commission," Penley v. Island Creek Coal
Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989); and "when
an attending physician is positive in his diagnosis . . . , great
weight will be given by the courts to his opinion." Pilot
Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d
570, 572 (1986).
In the instant case, the record demonstrates that the
commission reviewed substantial medical and other evidence to
conclude that decedent's suicide was causally connected to his
original compensable injury. The commission considered the
testimony of decedent's widow, Mrs. Ball, and reviewed records
13
kept by decedent's treating orthopedic surgeon, Dr. Daugherty.
Included in Dr. Daugherty's records is his final diagnosis of
decedent's condition as a "thirty-three percent impairment of the
upper extremity, or twenty percent of the whole person." Dr.
Daugherty's records also reflect his opinion that "Mr. Ball has a
post traumatic reactive depression leading to hospitalization
. . . [which] is directly and causally related to the injury
which he sustained and for which he has been under the care of
Winchester Surgical Clinic physicians . . . ."
Additional medical records were made part of the record in
this case. Dr. Lizer, decedent's treating physician at
Winchester Medical Center, described decedent's depression as
follows: "[T]his patient reported increasing depression over the
past year. He had multiple stressors. Most significantly, he
had had a shoulder injury resulting in a significant period of
disability." Included in Dr. Lewis' medical records and
correspondence is his opinion regarding decedent's depression.
Dr. Lewis opined that "Mr. Ball's current condition is clearly
and directly related to his left shoulder and subsequent surgery
. . . . The psychological factors we are dealing with are
directly related to the pain and the depression which frequently
accompanies this [condition]." Following decedent's suicide, Dr.
Lewis wrote:
[I]n my opinion, Mr. Ball's suicide is
directly related to the chronic pain he
struggled with in both shoulders. . . .
[T]his pain resulted in considerable
depression and several periods of suicidal
14
ideation as the only way out of his pain and
depression . . . .
[H]is death is clearly a direct result
of the chronic pain and depression associated
with his original work related injury.
At employer's request, a psychiatrist, Dr. Smoller, reviewed
decedent's records, interviewed decedent's widow, and issued an
opinion regarding the cause of decedent's suicide. The
commission summarized Dr. Smoller's findings as follows:
Dr. Bruce M. Smoller, M.D., psychiatrist,
. . . concluded that "shoulder injuries of
this type do not ordinarily cause depression
which would end in suicide." He surmised
that a number of factors had a bearing on the
suicide, including a possible biological
component, loss of position in the family
business, personality factors, and marital
problems. Dr. Smoller stated these other
factors were as important as or more
important that the chronic pain.
In weighing the testimony of Dr. Lewis and Dr. Smoller, the
commission specifically found:
Dr. Lewis has been the treating psychologist
since 1990. His extensive reports over the
course of his treatment document
overwhelmingly the fact that the most
significant stressor in the claimant's life
was his "intractable pain" resulting in
incapacity and depression. Dr. Lewis'
unequivocal opinion linking the decedent's
death to his chronic pain and resulting
depression is supported repeatedly by Dr.
Lewis' ongoing assessments. Dr. Smoller's
opinion attributing the depression and
suicide to other factors has minimal support
in the record.
Viewing the evidence in the light most favorable to
claimant, we find that credible evidence supports the
15
commission's determination that decedent's death was causally
related to his earlier compensable injury and that Code
§ 65.2-306(A)(1) does not bar recovery under these circumstances.
Affirmed.
16