COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
DANIEL CONSTRUCTION COMPANY AND
CONTINENTAL CASUALTY COMPANY
OPINION BY
v. Record No. 1332-96-3 JUDGE LARRY G. ELDER
JANUARY 28, 1997
WESLEY ALLEN TOLLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kristine H. Smith (Edmunds & Williams, P.C.,
on brief), for appellants.
Barbara J. Balogh (Poindexter & Schorsch, on
brief), for appellee.
Daniel Construction Company (appellant) appeals from a
decision of the Workers' Compensation Commission (commission)
awarding permanent total disability benefits to Wesley A. Tolley
(claimant). Appellant contends (1) that the commission erred
when it ruled that a claimant need only prove that he or she
suffers from a psychiatric condition in order to qualify for
permanent total disability benefits under former Code
§ 65.1-56(18); (2) that the evidence was insufficient to prove
that claimant suffered an injury to the brain; and (3) that the
deputy commissioner abused his discretion when he refused to
allow appellant to submit a post-hearing report from its expert.
For the reasons that follow, we affirm.
I.
FACTS
Claimant, a former concrete plant worker, suffered a
trauma-related psychological injury on August 31, 1982 when an
unannounced explosion of 100 pounds of dynamite startled him
while he was unloading concrete in a mine shaft. As a result of
this accident, claimant has suffered from post-traumatic stress
disorder, anxiety disorder, panic disorder, and depression. The
commission awarded temporary total disability benefits that
expired after 500 weeks in March, 1992. On February 8, 1995,
claimant filed an application for permanent total disability
benefits, alleging that his accident in 1982 had caused an
irreversible injury to his brain that rendered him permanently
unemployable.
A hearing was held before a deputy commissioner on July 7,
1995. At the hearing, claimant and his wife testified in detail
regarding how claimant's injury has adversely impacted the
non-vocational quality of his life and severely limited his
ability to engage in many usual cognitive processes, such as
working, socializing, driving, and engaging in an equal and
intimate marital relationship.
The medical evidence introduced at the hearing consisted of
(1) claimant's medical records dating from 1972, (2) a report by
claimant's treating physician, Dr. Michael Hoffman, dated January
23, 1995, and (3) a report by appellant's expert, Dr. C. Robert
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Showalter, dated June 30, 1995. The medical records indicated
that after his accident, claimant has consistently been diagnosed
as suffering from post-traumatic stress disorder and, with some
variation, either anxiety disorder, panic disorder, or
depression. In his report, Dr. Hoffman reviewed his observations
and treatment of claimant since 1987 and opined that claimant
suffered from an incurable psychological disease that has
resulted in his permanent unemployability. Dr. Showalter's
report stated that after examining claimant once, he concluded
that claimant suffered no organic brain deterioration and no
irreversible brain injury and that claimant possesses the ability
to carry out some level of minimally stressful, gainful
employment.
Following the hearing, the deputy commissioner held open the
record so that appellant could take a previously scheduled
deposition of Dr. Hoffman that had been thwarted when Dr. Hoffman
was detained by local floods. The record was also held open to
provide Dr. Hoffman the opportunity to respond to Dr. Showalter's
report, which was not received by claimant until two days before
the hearing. After the hearing, appellant declined to depose
Dr. Hoffman and requested either that the record be closed or
that Dr. Showalter be permitted to respond to any subsequent
report accepted by the deputy commissioner from Dr. Hoffman.
Claimant objected and requested the deputy commissioner to allow
Dr. Hoffman to file a report in response to Dr. Showalter's and
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to then close the record. The deputy commissioner ruled that he
would close the record after accepting a subsequent report from
Dr. Hoffman but not from Dr. Showalter. Appellant objected to
this ruling.
A second report by Dr. Hoffman was filed on September 6.
In this report, Dr. Hoffman responded to the conclusions of
Dr. Showalter. He stated that claimant had been consistently
diagnosed with post-traumatic stress disorder resulting from his
accident and that this psychological disease has manifestations
that make it an irreversible brain injury. Dr. Hoffman described
the physical injury to claimant's brain:
"[Claimant] suffered a traumatic experience
that directly resulted in a neurochemical
imbalance in his central nervous system.
These are changes that occur at a cellular
level and are entirely beyond the patient's
control. It is shown throughout the medical
literature that post-traumatic responses
often manifest themselves in neurochemical
changes in the brain. Recent evidence from
the National Institute of Mental Health shows
specific structural changes within the
neurons that is permanent and irreversible.
Damage is done to neurosynaptic receptors and
serotinergic neurotransmitters which
frequently are extremely difficult to treat
. . . . I reluctantly believe this is
exactly what happened in this case."
On September 29, the deputy commissioner awarded permanent
total disability benefits to claimant. He stated that claimant's
case was governed by former Code § 65.1-56(18) and found that
claimant was permanently unemployable and that his injury had
taken away some of his "broad range of 'usual' cognitive
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processes."
Appellant appealed the decision of the deputy commissioner
and the commission affirmed. The commission held that under the
definition of "injury" set forth in both former Code § 65.2-101
and Burlington Mills Corp. v. Hagood, 177 Va. 204, 13 S.E.2d 291
(1941), an "injury to the brain" includes "a brain injury that
manifests itself through a psychiatric condition." Relying on
Dr. Hoffman's reports, the commission found that claimant had
proved that he suffered from both a brain injury that manifested
itself through a psychiatric condition and an actual physical
injury to the brain.
II.
TOTAL PERMANENT BENEFITS UNDER FORMER CODE § 65.1-56(18)
Appellant contends that the commission erred when it
concluded that a claimant need only prove that he suffers from a
psychiatric condition in order to qualify for permanent total
disability benefits under former Code § 65.1-56(18) and when it
found that claimant had suffered a physical injury to his brain.
We disagree.
Under the former version of the Workers' Compensation Act
(Act), Code § 65.1-56(18) provided an exception to the general
rule that benefits for compensable injuries had definite time
limits. See Code § 65.1-54. Under former Code § 65.1-56(18),
benefits continued "for the lifetime of the injured employee
without limit as to total amount," if the employee suffered inter
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alia from "an injury to the brain resulting in incurable
imbecility or insanity." Code §§ 65.1-54, 65.1-56(18). In
Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 36, 366 S.E.2d
271, 274 (1988), we held that a claimant establishes "incurable
imbecility" by showing that his or her irreversible brain injury
has both rendered claimant permanently unemployable and
eliminated his or her ability to engage in a range of usual
cognitive processes in non-vocational life.
Appellant does not contend that claimant failed to prove
that he suffered from "incurable imbecility" as contemplated by
former Code § 65.1-56(18) and as further defined in Barnett.
Instead, appellant asserts that claimant failed to satisfy former
Code § 65.1-56(18)'s requirement that he suffer an "injury to the
brain." Appellant argues that the phrase "injury to the brain"
is ambiguous and should be construed to exclude conditions that
are purely psychological in nature. However, we need not reach
the issue of whether a claimant suffering from a purely
psychological injury is entitled to total permanent disability
benefits under former Code § 65.1-56(18) because the medical
evidence in this case proved that claimant suffered an "injury"
that resulted in "structural changes" to the brain.
"Under familiar principles, we view the
evidence in the light most favorable to the
prevailing party, [claimant] in this
instance." R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990). "It lies within the
commission's authority to determine the facts
and the weight of the evidence, and its
findings in that regard, when supported by
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credible evidence, will not be disturbed on
appeal." Rose v. Red's Hitch & Trailer
Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d
392, 395 (1990). "A question raised by
conflicting medical opinion is a question of
fact." Commonwealth v. Powell, 2 Va. App.
712, 714, 347 S.E.2d 532, 533 (1986). "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).
Thomas v. Nordstrom Pentagon City, 22 Va. App. 626, 631-32, 472
S.E.2d 288, 290 (1996).
We hold that the evidence was sufficient to prove that
claimant suffered an injury to his brain. First, the evidence
supports the commission's finding that claimant suffered an
"injury." Post-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. See Hercules v.
Gunther, 13 Va. App. 357, 362, 412 S.E.2d 185, 188 (1991);
Chesterfield County v. Dunn, 9 Va. App. 475, 477, 389 S.E.2d 180,
182 (1990). Claimant's medical records indicate that in the
thirteen years following his accident, physicians have
consistently diagnosed him as suffering from post-traumatic
stress disorder caused by his exposure to the unexpected dynamite
blast.
In addition, credible evidence supports the commission's
finding that claimant's injury was "to his brain." Dr. Hoffman's
first report demonstrates the necessary link between claimant's
post-traumatic stress disorder and his brain. In it, Dr. Hoffman
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reported that the symptoms of claimant's psychological problems
included the impairment of the ability of claimant's brain to
function, including the reduced ability of claimant's brain to
remember, concentrate, and maintain emotional stability. He
concluded that claimant "has suffered a severe brain injury."
Dr. Hoffman's second report provided a more exact explanation of
actual physical changes to claimant's brain caused by
post-traumatic stress disorder. Specifically, Dr. Hoffman stated
that post-traumatic stress disorder results in irreversible
structural changes within the neurons in the brain that include
damage to neurosynaptic receptors and serotinergic
neurotransmitters. He opined that such damage had occurred to
claimant's brain and that this injury impaired claimant's
cognitive abilities. Although Dr. Showalter opined that
claimant's psychological injury did not injure his brain,
"[q]uestions 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).
III.
REFUSAL TO RECEIVE POST-HEARING EVIDENCE
Appellant contends that the deputy commissioner abused his
discretion when he refused to allow Dr. Showalter to submit a
report in response to Dr. Hoffman's post-hearing report. We
disagree. While proceedings before the commission must comply
with the requirements of due process, deputy commissioners
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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).
We hold that the deputy commissioner did not abuse his
discretion by permitting Dr. Hoffman to file a report after
appellant canceled his deposition. The record indicates that
local floods prevented Dr. Hoffman from being deposed prior to
the hearing. In addition, Dr. Hoffman was unable to respond to
Dr. Showalter's report in time for the hearing because claimant
did not receive the report until two days before the hearing was
held. The deputy commissioner left the record open in order to
accommodate appellant's deposition of Dr. Hoffman and to "doubly
act as an opportunity for Dr. Hoffman to comment [on
Dr. Showalter's report]." When appellant canceled its deposition
of Dr. Hoffman, it also eliminated the previously designated
forum for Dr. Hoffman to comment on Dr. Showalter's report. The
deputy commissioner was within his discretion to realize the
remaining purpose for which the record was held open by
permitting Dr. Hoffman to comment on Dr. Showalter's report in
the alternative form of a report of his own.
We also hold that the deputy commissioner did not abuse his
discretion when he refused to receive a rebuttal report from
Dr. Showalter after accepting Dr. Hoffman's post-hearing report.
The record indicates that the deputy commissioner did not grant
permission to appellant to file a subsequent report by
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Dr. Showalter. We find no abuse of discretion in the deputy
commissioner's refusal to accept post-hearing evidence that was
beyond the scope of evidence for which the record was held open.
Moreover, even if the deputy commissioner had abused his
discretion by refusing to admit a post-hearing report from
Dr. Showalter into the record, we could not review whether any
prejudice occurred to appellant because appellant did not proffer
the content of Dr. Showalter's report. When a deputy
commissioner refuses to admit evidence for which the record was
arguably held open, "the party must proffer or avouch the
evidence for the record in order to preserve the ruling for
appeal; otherwise, the appellate court has no basis to decide
whether [the party was prejudiced by the deputy commissioner's
error]." Smith v. Hylton, 14 Va. App. 354, 357-58, 416 S.E.2d
712, 715 (1992) (stating that party must proffer evidence in
order to preserve for appeal an adverse ruling on the
admissibility of evidence). Although appellant sent a letter to
the deputy commissioner on August 29 objecting to the refusal of
a subsequent report from Dr. Showalter, the record indicates that
appellant never proffered the content of Dr. Showalter's response
to Dr. Hoffman's report after it was filed on September 6.
In light of the foregoing reasons, we affirm the decision of
the commission.
Affirmed.
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