Daniel Construction Co. v. Tolley

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

-2-
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

-3-
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

-4-
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

-5-
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

-6-
 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

-7-
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

-8-
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

-9-
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.

-10-