K & G ABATEMENT CO. v. Keil
| Decision Date | 20 August 2002 |
| Docket Number | Record No. 0164-02-1. |
| Citation | 38 Va. App. 744,568 S.E.2d 416 |
| Court | Virginia Court of Appeals |
| Parties | K & G ABATEMENT COMPANY and Granite State Insurance Company, v. Thomas E. KEIL (Deceased) and Peggy T. Keil (Widow). |
F. Nash Bilisoly (Brian L. Sykes; Vandeventer Black, LLP, on briefs), for appellants.
Stephen A. Strickler, Virginia Beach (Matthew H. Kraft; Inman & Stickler, PLC, on brief), for appellees.
Present: FRANK, HUMPHREYS and AGEE, JJ.
K & G Abatement Company (employer) appeals the decision of the Workers' Compensation Commission (the commission) to award benefits to Peggy T. Keil (claimant) for the death of her husband, Thomas Keil (Keil), an employee of employer. It contends the commission erred by (1) refusing to permit it to produce rebuttal evidence, (2) denying its motion in limine and (3) finding that claimant established that Keil's fatal injuries arose out of his employment. We disagree and affirm the commission's decisions.
Keil, age fifty-nine, was working on the roof of S.H. Clarke Academy in Portsmouth on the morning of November 10, 1998. The school is primarily a one-story building, but has a two-story extension where Keil and two other employees were working. At approximately 10:00 a.m., Keil left the second story roof workstation to descend to the ground to place a telephone call. He climbed down a permanent ladder to the first story roof where he was then out of the other roofers' sight. In order to go from the first story roof to the ground, Keil had to lower a twenty-foot extension ladder to the ground. Several people inside the school heard the sound of the extension ladder being displaced and something striking the concrete pavement.
Shortly thereafter, Keil was found lying on the ground combative, disoriented, mumbling and with an open-head wound. Loose gravel from the roof was found on the ground around him. No one witnessed Keil's fall, and Keil was unable to provide anyone with the details of what happened. He was transported by ambulance to a nearby trauma center.
An angiogram was performed at the trauma center after which Keil suffered cardiac arrest. Keil was revived but subsequently arrested two more times and was pronounced dead at 6:04 p.m. No autopsy was performed. The medical examiner, Dr. Hoffman, filed a certificate of death stating that death was caused by "closed chest and head injuries."
Claimant filed a claim with the commission to receive benefits. In defense, employer filed three medical reports. First, employer submitted a letter from Dr. Waters, the neurologist who examined Keil after he suffered cardiac arrest and pronounced him neurologically dead. Dr. Waters wrote:
I would disagree with [the medical examiner] that Mr. Keil's death was from a closed head injury. After reviewing the events which transpired while he was hospitalized at Norfolk General Hospital, the type of death he suffered from was very precipitous and, indeed, very inconsistent with a patient dying from brain swelling or any type of intracranial process. I therefore believe that [the medical examiner's] opinion, that the cause of death was a closed head injury, is inaccurate.
Employer also submitted a letter from Dr. Collins, the trauma physician who treated Keil upon his admission to the hospital. Dr. Collins concluded, "without an autopsy I am unable to speculate about the possible causes of [Keil's] demise."
The third letter submitted by employer was from Dr. Hagberg, the cardiac and thoracic surgeon who examined Keil's angiogram, but who did not personally examine Keil. In response to questions posed by employer, Dr. Hagberg answered that he was unable to determine, with a reasonable degree of medical certainty, what caused the cardiac arrest which led to Keil's death.1
The commission scheduled a hearing before a deputy commissioner for June 21, 2000. On June 9, 2000, claimant filed two short lists of questions answered by Drs. Waters and Hagberg in response to inquiries from claimant's counsel. Dr. Waters answered, "yes," that it was his opinion that Keil's multiple and significant head injuries (1) contributed to his ultimate demise and (2) Keil "most probably died as a result of his fall from the roof."
In a separate inquiry, Dr. Hagberg answered the following question, "no":
Now being advised that Mr. Keil [fell] from a height of 15 to 21 feet onto concrete (whereas previously you had been advised that he had only fallen 8 to 10 feet) and further being advised that Mr. Keil was localizing pain in his head and lower quadrant after the accident and upon further review of the medical records, can you state with a reasonable degree of medical certainty that the most likely cause of Mr. Keil's cardiac arrest was a myocardial infarction?
At the hearing before the deputy commissioner, claimant introduced the responses from Drs. Waters and Hagber without objection from employer. The deputy commissioner granted employer's request for permission to depose Drs. Waters and Hagberg post-hearing and that the record be kept open in order to receive those depositions and a previously scheduled deposition of Dr. Hoffman. No other cause to leave the record open was cited by employer or acknowledged by the deputy commissioner.
Dr. Hagberg testified, by deposition, that he only examined Keil from a distance because Keil suffered cardiac arrest. He "merely interpreted the aortogram" and opined that Keil died from cardiac arrest but was unable to determine what led to the arrest. Dr. Hagberg stated that any theory he posed would be speculation.
Dr. Waters testified in his deposition that he performed a neurological examination of Keil and determined that Keil demonstrated no neurological functions. He reviewed the CT scan taken of Keil's head and noted skull fractures, a bruise on the right side of the brain, some blood in the frontal lobes, an epidural hemorrhage and a subarachnoid hemorrhage. He opined that Keil's head injuries did not cause the cardiac arrest, but was unable to determine what did cause the arrest.
Subsequent to these depositions, but prior to the deposition of Dr. Hoffman, employer requested permission to depose Dr. Collins and to have an expert cardiovascular physician testify. Employer argued the additional evidence was necessary and complained that it "had presented all of the medical opinions needed to defend [its] case five months prior to the hearing and that it was manifestly unfair to allow counsel for the claimant to produce new medical opinions days prior to the hearing without allowing [it] to take reasonable steps `to meet that evidence.'" The employer's request was denied by the deputy commissioner.
In his deposition, Dr. Hoffman, the medical examiner, opined, to a reasonable degree of medical certainty, that Keil suffered an accidental death caused by closed head and closed chest injuries. This is the same opinion he submitted on the death certificate. Dr. Hoffman further opined that an aortic dissection discovered in Keil's aortagram "[was] evidence that there was acceleration/deceleration injury inside the chest." Finally, he stated there was no real evidence of myocardial infarction.
Here, we have no real evidence of myocardial infarction . ... We have some head injuries that we know are not sufficient by themselves to cause death, we have some closed chest injuries that we know are not what we see sufficient to cause death, but we have no evidence of myocardial infarction. It is not speculation that he fell. It is not speculation that he has some chest injuries. It is not speculation he has some head injuries. It would be extreme speculation to say he had a myocardial infarction, and that is where we [determined] accidental death ... . We looked at this not once, but three separate times, and discussed it as a matter of policy with the chief medical examiner in Richmond.
Employer then filed a motion in limine to limit the introduction of portions of the deposition testimony of Drs. Waters and Hoffman. Employer alleged the physicians' testimony was speculative and without foundation in medical facts. The deputy commissioner denied the motion, finding the testimony was not conjectural or speculative.
The deputy commissioner issued a February 2, 2001 opinion, which awarded claimant compensation for burial and transportation expenses related to the deceased and weekly compensation in the amount of $534 for the maximum statutory period allowed. In making the award, the deputy commissioner applied a presumption that Keil's death was due to an unexplained accident, which arose out of employment, and that employer had not overcome the presumption. The deputy commissioner further held claimant would prevail, even without the presumption, based on the totality of the evidence.
Employer appealed to the full commission the order denying its motion for additional evidence, the order denying the motion in limine, and the award. The commission affirmed the deputy commissioner's evidentiary rulings and the award in favor of claimant.
The commission found that "Where is no question that [Keil] was in the course of his employment when he began leaving the roof of the school to make a telephone call." This left only the issue of whether Keil's fatal injuries were due to an accident arising out of his employment. The commission held that claimant was entitled to the presumption established in Southern Motor Lines v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958). Notwithstanding the presumption, the commission also found claimant had presented sufficient evidence to sustain the award even if the presumption did not apply.
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