FAIRFAX COUNTY FIRE AND RESCUE v. Mottram

Present:   All the Justices

FAIRFAX COUNTY FIRE AND RESCUE
DEPARTMENT, ET AL.

v.   Record No. 010791   OPINION BY JUSTICE CYNTHIA D. KINSER
                                         March 1, 2002
RANDALL U. MOTTRAM

            FROM THE COURT OF APPEALS OF VIRGINIA

      In this workers’ compensation claim, the issue is

whether posttraumatic stress disorder (PTSD) is a disease

and, if so, whether it is an ordinary disease of life or an

occupational disease as defined in Code § 65.2-400.

Because we conclude that the evidence establishes that the

PTSD suffered by the employee in this case is an

occupational disease, we will affirm in part and reverse in

part the judgment of the Court of Appeals holding that PTSD

is an ordinary disease of life.

                FACTS AND MATERIAL PROCEEDINGS

      Randall U. Mottram had been employed by the Fairfax

County Fire and Rescue Department (the Department) and the

Fairfax County Board of Supervisors (collectively with the

Department, the Employer), for 19 years when he was

diagnosed with PTSD in 1996.   During the first ten years of

his employment, he worked as a paramedic and then became a

paramedic supervisor with the rank of captain.   In both of

those positions, Mottram responded to approximately ten
emergency calls per day.   Not all of the calls to which he

responded as a paramedic involved severely injured people.

However, as a supervisor, he responded to the “big serious

calls with lots of people needing medical care.”   Those

emergency calls included incidents such as airplane

crashes, amputations and decapitations, automobile

accidents with multiple victims, shootings, stabbings, and

house fires with fatalities of entire families.

     Beginning in the early 1990’s, Mottram was assigned to

various administrative posts that did not require him to

respond to emergencies.    However, every two months, Mottram

worked a 24-hour shift involving emergency response in

order to maintain his certification as a paramedic.

     Mottram was working such a shift on March 10, 1996,

when he responded to a fire at a residence that resulted in

multiple burn injuries to several people and one fatality.

The fire was especially disturbing to Mottram because it

reminded him of a horrible house fire to which he had

responded fifteen to twenty years earlier in which six

members of a family, including children and grandparents,

had perished.   While Mottram was treating a five-year-old

girl at the March 10 fire, the child inquired about her

stepmother.   Mottram had just pronounced the stepmother

dead at the scene of the fire, and he was aware that the


                               2
child’s father was critically injured.   In describing his

reaction to the child’s question, Mottram stated that he

“became removed from the scene.   I was outside of myself.”

He said that he felt a “shroud of darkness” come over him

and that he had difficulty breathing.

     Mottram first consulted Dr. Mary W. Lindahl, a

licensed clinical psychologist, on March 4, 1996, six days

prior to that March 10 emergency response call, because he

was concerned that he might be predisposed to suffering a

disabling injury.   He reported experiencing intrusive

thoughts, overwhelming anxiety, and excessive sleeping.

Mottram saw Dr. Lindahl again on March 6 and 7.   During

those visits, he stated that his symptoms persisted and

that he was considering taking leave from work because of

stress.

     During another appointment three days after the

incident on March 10, Dr. Lindahl described Mottram as

“noticeably more distressed, and . . . becoming seriously

depressed.”   Dr. Lindahl concluded that it “is difficult to

separate out the impact of the [March 10] call on Mr.

Mottram’s condition. . . . Clearly, he had some symptoms of

PTSD when he first came on [March 4]; however, his symptoms

worsened into a serious PTSD and major depression after the

[March 10] incident.”   By December 1996, Mottram was


                              3
suicidal and had to be hospitalized for treatment, which

included electroconvulsive therapy.   In a series of medical

status reports from March 1996 through June 1996, Dr.

Lindahl consistently described the March 10, 1996 episode

as the “critical incident.”    However, she also separately

noted that Mottram “has chronic PTSD, so other work-related

incidents also contributed.”

     Dr. Lindahl further stated that there is no evidence

that Mottram was exposed to critical incidents outside his

employment.   Likewise, at a hearing on his workers’

compensation claim, Mottram testified that he had not been

exposed to medical emergencies or fires, nor had he

witnessed death or violent trauma, outside the

circumstances of his employment with the Department.

     In 1998, Dr. Lindahl expressed the following opinion

regarding Mottram’s condition:

     It is my opinion that Capt. Mottram is suffering from
     an occupational disease which arises out of the course
     of his employment in the Fairfax County Fire
     Department. It is well-documented in the
     psychological literature that emergency services
     workers are at increased risk for Post-Traumatic
     Stress Disorder, and there is some evidence indicating
     that the longer the exposure, the more severe the
     reaction. Mr. Mottram had a long career in the Fire
     Department with exposure to many critical incidents.
     As a result, he has developed Post-Traumatic Stress
     Disorder that is chronic and cumulative.




                               4
The psychological literature to which Dr. Lindahl was

referring included an article discussing the neurobiology

of PTSD.      Relying on that article, Dr. Lindahl stated that

Mottram’s exposure to critical incidents resulted in

“neurochemical alterations in multiple neurotransmitter

systems.”      See Steven M. Southwick et al., Neurobiology of

Post-Traumatic Stress Disorder in PSYCHOTRAUMATOLOGY, KEY PAPERS

AND   CORE CONCEPTS   IN   POST TRAUMATIC STRESS 49, 53 (George S.

Everly, Jr. & Jeffrey M. Lating eds., 1995).

        Dr. Lindahl referred Mottram to Dr. Randolph A. Frank,

Jr., a psychiatrist who concurred in the diagnosis of PTSD.

Dr. Frank opined that Mottram’s PTSD was “incurred in the

line of duty as characterized by marked and intrusive

distressing recollections of events noted in a number of

calls that he was involved in, recurrent distressing

dreams, significant symptoms of increased arousal and

anxiety, sleep disturbance, severe difficulty

concentrating, and extreme hypervigilance.” 1



        1
       On brief, the Employer discusses a psychiatric
evaluation of Mottram conducted by Dr. Brian Schulman at
the request of the Department. Dr. Schulman diagnosed
Mottram as suffering from major depression that “was not
precipitated or accelerated by any condition emanating from
Mr. Mottram’s employment.” Despite noting symptoms of a
depressed affect, moderate degree of anxiety, and insomnia,
Dr. Schulman found no medical basis upon which to ascribe
those symptoms to PTSD.

                                        5
     In January 1997, Mottram filed a workers’ compensation

claim alleging that on March 10, 1996, he suffered an

injury by accident arising out of and in the course of his

employment, which resulted in temporary total disability

due to PTSD.   In the alternative, Mottram claimed that he

was suffering from an occupational disease.   At a hearing

before the Deputy Commissioner, Mottram elected to proceed

only on the theory of injury by accident and withdrew the

occupational disease claim.

     The Workers’ Compensation Commission (the Commission)

denied Mottram’s claim, deciding that Mottram had not

proven a compensable injury by accident and that his

condition was not causally related to the incident on March

10, 1996.   Mottram did not appeal that decision.

     Mottram subsequently filed a second application,

claiming that his PTSD was an occupational disease arising

out of and in the course of his employment.   The Commission

again denied the claim, finding that Mottram’s PTSD was not

compensable because it was a condition resulting from

cumulative or repetitive trauma, rather than a disease.    In

distinguishing this Court’s decision in A New Leaf, Inc. v.


     However, the validity of the diagnosis of Mottram’s
PTSD is not at issue in this appeal because the Employer
did not assign error to the finding that Mottram suffers
from PTSD. See Rule 5:17(c).


                              6
Webb, 257 Va. 190, 511 S.E.2d 102 (1999), the Commission

concluded that Mottram’s condition was “attributable to

exposure to one or more significant and distinct traumatic

events” rather than to a general exposure to such

incidents. 2

     Mottram appealed the Commission’s denial of his

occupational disease claim to the Court of Appeals.    That

court reversed, holding that Mottram’s condition is a

disease.   Mottram v. Fairfax County Fire & Rescue, 35 Va.

App. 85, 96, 542 S.E.2d 811, 816 (2001).    In reaching that

conclusion, the court recognized that PTSD may be

compensable as an injury by accident under certain

circumstances, but that, in other situations, it may be

appropriately classified as a disease.     Id. at 93, 542

S.E.2d at 814.   The Court of Appeals found that Mottram’s

condition was analogous to the employee’s allergic contact

dermatitis in A New Leaf because, “[j]ust as [that

employee’s] condition resulted from a bodily reaction to

irritating stimuli, Mottram’s condition resulted from

‘neurochemical alterations in multiple neurotransmitter



     2
       A Deputy Commissioner had found that the evidence was
“insufficient to establish that [Mottram’s] claim is
compensable as an ordinary disease of life.” Since the
Commission concluded that Mottram’s PTSD is not a disease,



                              7
systems.’ ”    Id. at 95, 542 S.E.2d at 815.      However, the

court concluded that, because “PTSD is a condition that may

develop from the general stresses of life and is not

necessarily tied to occupational stress,” it is an ordinary

disease of life within the meaning of Code § 65.2-401.           Id.

at 96, 542 S.E.2d at 816.   Thus, the court remanded

Mottram’s claim to the Commission for a determination as to

whether Mottram’s PTSD qualifies as a compensable ordinary

disease of life.    Id.

     The Employer appeals from that decision, asserting

that the Court of Appeals erred in finding that PTSD may be

a compensable ordinary disease of life.        Mottram assigned

cross-error.   He contends that the Court of Appeals erred

by concluding that PTSD is not an occupational disease.

                            ANALYSIS

     The issue whether an employee “has suffered an

impairment that constitutes a compensable disease is a

mixed question of law and fact.”       Stenrich Group v.

Jemmott, 251 Va. 186, 192, 467 S.E.2d 795, 798 (1996),

cited in A New Leaf, 257 Va. at 196, 511 S.E.2d at 104.

Hence, the Commission’s finding with regard to that mixed

question is not binding on appeal.       Id.   Instead, it is



it did not address whether it is an ordinary disease of
life or an occupational disease.

                               8
properly subject to review by this Court.    Id.; Peanut City

Iron & Metal Co. v. Jenkins, 207 Va. 399, 403, 150 S.E.2d

120, 123 (1966).

     As we have previously noted, the Employer does not

dispute that Mottram suffers from PTSD. 3   Thus, as in

Jemmott and A New Leaf, the factual part of the question is

not at issue in this case.   The legal portion of the mixed

question, which the Employer does contest, is whether PTSD

is a compensable disease within the purview of the Virginia

Workers’ Compensation Act, specifically either Code § 65.2-

401 (establishing criteria for compensable ordinary disease

of life), or Code § 65.2-400 (defining occupational

disease).   However, before deciding whether PTSD is

compensable under either of these statutory provisions, we

must first determine whether PTSD qualifies as a disease.

Merillat Indus. v. Parks, 246 Va. 429, 432, 436 S.E.2d 600,

601 (1993).


     3
       However, relying on the definition of PTSD in the
American Psychiatric Association: Diagnostic and
Statistical Manual of Mental Disorders (4th ed. 1994), the
Employer attempts to challenge the diagnosis of PTSD by
arguing that PTSD can only result from exposure to a single
traumatic stressor rather than exposure to separate and
distinct traumatic events. Since the factual finding that
Mottram suffers from PTSD is not the subject of an
assignment of error, see Rule 5:17(c), the question whether
PTSD can be caused by exposure to multiple traumatic
events, as opposed to a single such event, is not before
us.

                              9
        With regard to that issue, the Employer argues that,

since Mottram’s PTSD resulted from exposure to multiple

shocking and frightening events, it is a repetitive trauma

injury rather than a disease and is, therefore, not

compensable under this Court’s decisions in such cases as

Merillat and Jemmott.     The Employer points out that, when

the General Assembly amended Code § 65.2-400 to designate

hearing loss and carpal tunnel syndrome as ordinary

diseases of life, it did not include such disorders as

PTSD.    Finally, the Employer argues that our decision in A

New Leaf is distinguishable because the employee there had

constant daily exposure to the allergens whereas Mottram’s

exposure was to separate and distinct traumatic events.

The Employer also notes that, for several years prior to

the incident on March 10, 1996, Mottram responded to

emergency calls only about six days a year.

        Contrary to the Employer’s argument, we conclude that

our rationale in A New Leaf is controlling.     There, the

evidence established that the employee’s contact dermatitis

was caused by her physical contact with chemicals contained

in certain flowers.    257 Va. at 197, 511 S.E.2d at 105.

The record also included an article introduced into

evidence that described contact dermatitis as a “ ‘reaction

of the body’s immune system to the substance to which that


                                10
person is sensitive.’ ”   Id. (quoting Cindy Hoogasian,

Dermatitis Concerns Continue, FLORIST, March 1990, at 77).

Thus, we held that the employee’s exposure over time to a

causative agent in the flowers “triggered a dermatological

reaction, which is distinct from the wear and tear

resulting from a repetitive motion.”    Id. at 198, 511

S.E.2d at 105.

     In the present case, credible evidence establishes

that Mottram’s repeated exposure to traumatic stressors

caused reactions in his neurobiological systems, much like

the reaction of the employee’s immune system in A New Leaf.

Literature referred to by Dr. Lindahl and admitted into

evidence explains that, “[u]nder conditions of acute and

severe psychological trauma, the organism mobilizes

multiple neurobiological systems for the purpose of

survival.”   Southwick at 63.   However, these

neurobiological responses, although initially beneficial,

“may have long-term negative consequences that are related

to many of the chronic symptoms of PTSD.”    Id. at 64.   The

article also explains that individuals with “chronic PTSD

frequently exhibit increased anger, hostility, impulsivity,

and dysphoria[,]” and that such symptoms “may be related to




                                11
abnormalities in either norepinephrine, 5-HT, or both.” 4

Id.   Thus, we conclude, as did the Court of Appeals, that

Mottram’s condition is a disease.

      Since Mottram’s PTSD is a disease, the next inquiry is

whether it is a compensable condition.     For it to be

compensable, Mottram must show either that PTSD is an

occupational disease under the provisions of Code § 65.2-

400 or that it is an ordinary disease of life that may be


      4
          The Columbia Encyclopedia defines norepinephrine as:

      a neurotransmitter . . . that mediates chemical
      communication in the sympathetic nervous system,
      a branch of the autonomic nervous system. Like
      other neurotransmitters, it is released at
      synaptic nerve endings to transmit the signal
      from a nerve cell to other cells. . . . The
      sympathetic nervous system functions in response
      to short-term stress; hence norepinephrine . . .
      increase[s] the heart rate as well as blood
      pressure. Other actions of norepinephrine
      include increased glycogenolysis (the conversion
      of glycogen to glucose) in the liver, increased
      lipolysis (the conversion of fats to fatty acids
      . . .) in adipose (fat) tissue, and relaxation of
      bronchial smooth muscle to open up the air
      passages to the lungs. All of these actions
      represent a mobilization of the body’s resources
      in order to meet the stressful challenge – such a
      response is often termed the “flight or fight”
      syndrome.

The Columbia Encyclopedia (6th ed. 2001), available at
http://www.bartleby.com/65/no/norepine.html.

     5-HT (an acronym for 5-hydroxytryptamine, more
commonly known as serotonin) is also a neurotransmitter and
is a “potent vasoconstrictor.” Taber’s Cyclopedic Medical
Dictionary (18th ed. 1997).

                                12
treated as an occupational disease pursuant to Code § 65.2-

401.   The term “occupational disease” is defined as “a

disease arising out of and in the course of employment, but

not an ordinary disease of life to which the general public

is exposed outside of the employment.”   Code § 65.2-400(A).

The following six factors are necessary in order to

establish that a disease arose out of the employment:

            1. A direct causal connection between the
       conditions under which work is performed and the
       occupational disease;

            2. It can be seen to have followed as a natural
       incident of the work as a result of the exposure
       occasioned by the nature of the employment;

            3. It can be fairly traced to the employment as
       the proximate cause;

            4. It is neither a disease to which an employee
       may have had substantial exposure outside of the
       employment, nor any condition of the neck, back or
       spinal column;

            5. It is incidental to the character of the
       business and not independent of the relation of
       employer and employee; and

            6. It had its origin in a risk connected with the
       employment and flowed from that source as a natural
       consequence, though it need not have been foreseen or
       expected before its contraction.

Code § 65.2-400(B).   An ordinary disease of life may be

treated as an occupational disease if it is “established by

clear and convincing evidence” that it “arose out of and in

the course of employment . . . and did not result from



                               13
causes outside of the employment,” and that “[i]t follows

as an incident of occupational disease” or “[i]t is

characteristic of the employment and was caused by

conditions peculiar to such employment.”   Code § 65.2-401.

     With regard to whether Mottram’s PTSD is an

occupational disease or an ordinary disease of life, the

Employer argues that PTSD does not result solely from

occupational stresses.   Instead, the Employer contends that

PTSD can be caused by exposure to traumatic events found in

everyday life, such as violent personal assaults, severe

automobile accidents, or being diagnosed with a life

threatening illness.   However, the Employer acknowledges

that, of the six statutory factors required to establish an

occupational disease, only number four is at issue in this

appeal, whether PTSD is a disease to which Mottram may have

had substantial exposure outside of his employment.      See

Code § 65.2-400(B).

     We agree with the observation of the Court of Appeals

in Knott v. Blue Bell, Inc., 7 Va. App. 335, 338, 373

S.E.2d 481, 483 (1988), that “the question whether a

condition or disease is an ordinary disease of life [or an

occupational disease] is essentially a medical issue to be

decided by the trier of fact based on the evidence

presented.”   Accord Marcus v. Arlington County Bd. of


                              14
Supervisors, 15 Va. App. 544, 550, 425 S.E.2d 525, 529

(1993).   Contrary to the Employer’s argument, the focus is

not on the many causes of PTSD and whether some of them may

be found outside of an employment situation.    Instead, the

focus must be on the nature of the employee’s occupation

and the relationship between that occupation and the

specific disease, as contrasted to diseases that are

readily found in other occupations or ordinary life.       See 3

Arthur Larson, Larson’s Workers’ Compensation Law

§ 52.03[2] (2001).   In this case, Dr. Frank emphasized that

Mottram’s PTSD was “intimately related to his service-

connected activities.”    Moreover, there is no evidence that

Mottram was exposed to traumatic events outside his

employment.   Thus, based on the record in this case, we

conclude, as a matter of law, that Mottram’s PTSD is an

occupational disease under Code § 65.2-400.     See Mims v.

McCoy, 219 Va. 616, 618, 248 S.E.2d 817, 818 (1978)(where

the evidence was not in conflict, whether an individual was

a covered employee entitled to workers’ compensation

benefits was a question of law for the court).

     In reaching this decision, we acknowledge, as did the

Court of Appeals, that PTSD may be compensable as an injury

by accident, depending on the circumstances under which the

condition developed.     Mottram, 35 Va. App. at 93, 542


                                15
S.E.2d at 814.   See also Burlington Mills Corp. v. Hagood,

177 Va. 204, 210-11, 13 S.E.2d 291, 293 (1941) (traumatic

neurosis caused by sudden shock or fright without any

physical impact may be compensable as an injury by

accident).   We also recognize that PTSD is, in some

situations, an ordinary disease of life.     See, e.g.,

Teasley v. Montgomery Ward & Co., 14 Va. App. 45, 49-50,

415 S.E.2d 596, 598-99 (1992) (employee’s PTSD was an

ordinary disease of life because employee had numerous

sources of stress outside of the employment that

contributed to his condition).     However, we emphasize that

the credible evidence in this case establishes that

Mottram’s PTSD is an occupational disease.    In other words,

each case turns upon its own facts.

                          CONCLUSION

     For these reasons, we will affirm that part of the

Court of Appeals’ judgment finding that Mottram’s PTSD is a

disease, but will reverse that part of the judgment holding

that it is an ordinary disease of life.    Finding that

Mottram’s PTSD is an occupational disease under Code

§ 65.2-400, we will enter judgment in favor of Mottram and

remand this case to the Court of Appeals, with the

direction that the case be remanded to the Commission for




                              16
the purpose of calculating the amount of Mottram’s workers’

compensation benefits.

                                           Affirmed in part,
                                           reversed in part,
                                           and remanded.




                             17