Artis v. Ottenberg's Bakers, Inc., Record No. 2157-03-4 (VA 7/13/2004)
| Decision Date | 13 July 2004 |
| Docket Number | Record No. 2157-03-4 |
| Parties | PHILLIP L. ARTIS, v. OTTENBERG'S BAKERS, INC. AND RELIANCE NATIONAL INDEMNITY CO. |
| Court | Virginia Supreme Court |
Appeal from the Virginia Workers' Compensation Commission, Claim No. 201-21-75
Craig A. Brown (Ashcraft & Gerel, LLP, on brief), for appellant.
Joseph F. Giordano (Vanessa L. Crockett; Semmes, Bowen & Semmes, P.C., on brief), for appellees.
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Felton, Kelsey and McClanahan
On June 14, 2004 came the appellant, by counsel, and filed a petition praying that the Court set aside the judgment rendered herein on June 1, 2004, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on June 1, 2004 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellant shall file with the clerk of this Court twelve additional copies of the appendix previously filed in this case.
Present: Chief Judge Fitzpatrick, Judges Humphreys and Clements
Phillip L. Artis (claimant) appeals a decision of the Workers' Compensation Commission (commission) denying his claim for temporary partial disability benefits following his termination from selective employment provided by Ottenberg's Bakers, Inc. (employer). Claimant contends the commission erred in finding that he failed to prove his post-termination wage loss was attributable to his compensable work-related psychiatric disorder. We agree and, therefore, reverse and remand.
The relevant facts in this case are not in dispute. On October 2, 1999, claimant was employed as a route salesman for employer. On that day, at approximately 3:45 a.m., while en route in a delivery truck to one of employer's customers, claimant came upon an apparent "road rage" incident on Interstate 66 in Fairfax County. Several people involved in the incident exited their vehicles and ran across the highway in front of claimant's truck. The last person attempting to cross the highway darted directly in the path of claimant's vehicle. Although claimant attempted to avoid hitting that person, he was unable to do so. Claimant's vehicle struck and killed the individual. Claimant, who was in a "daze" and hyperventilating after the accident, called employer to report the accident. He informed employer's representative that he was too distraught to finish his shift, but was told he had to because employer had no one available to replace him. Claimant finished his route, completed his paperwork, and drove himself home.
Claimant missed some work after the accident. He testified that, following the accident, he began to experience flashbacks and fear "that it would happen again" and that he would be "thought of as a killer." Those feelings, he testified, caused him to experience "depression to the point . . . [he] was suicidal." His children, he further testified, "wanted to know why [he] was not getting out of bed or why [he] couldn't take them certain places." Eventually, claimant returned to work in a selective duty capacity, riding with other drivers at first and then driving different routes, sometimes with a co-driver along to assist him. Claimant testified he "was returned to full duty with the stipulation if I need help, ask the night manager and that would be provided, and that was refused on a few occasions."
The medical records in this case indicate that, on October 4, 1999, claimant sought medical treatment for back pain at the Providence Hospital Wellness Institute. He was diagnosed with a thoracic strain and excused from work through October 10, 1999. As of October 21, 1999, claimant's back pain had resolved.
On October 11, 1999, claimant returned to the Providence Hospital Wellness Institute for a follow-up evaluation. He reported that he was unable to drive and was suffering from emotional distress due to the accident.
On October 12, 1999, claimant came under the care of Dr. Cecil Harris, a clinical psychologist, for his emotional problems stemming from the fatal accident, including flashbacks of the accident, fear of driving and crossing the street, anxiety attacks, feelings of being a killer trouble sleeping and getting out of bed, and problems maintaining an erection. Claimant's initial mental status examination by Dr. Harris "revealed a nervous, tense/anxious, depressed, agitated, phobic male who was fully oriented with sad, hopeless, and depressed affect, and depressed/irritable mood" and who "denied suicidal and homicidal ideation and was having trouble containing paranoid, hostile, and violent urges secondary to his anxious, agitated feelings." Claimant indicated in his intake questionnaire with Dr. Harris that he had received prior psychological treatment for "rage" in 1996 from Dr. Jones.
Dr. Harris diagnosed claimant as suffering from "PTSD" (posttraumatic stress disorder) and "Adjustment Disorder with Mixed Anxiety and Depressed Mood." Dr. Harris initiated a "treatment plan of twice weekly, or as needed psychotherapy." Claimant received "generally weekly and sometimes bi-weekly" counseling treatment from Dr. Harris through at least July 2000. As part of his treatment, claimant also took Zyprexa, which was provided, on Dr. Harris's referral, by Dr. Walker Lyerly. Dr. Harris recommended that, in returning to work as a delivery truck driver, claimant should initially ride with another driver, then have another driver ride with him, and ultimately, "when ready," drive by himself.
Dr. Harris saw claimant for treatment five more times in October 1999. On October 14, 1999, Dr. Harris wrote in his contemporaneous treatment notes that claimant was "again unable to drive to session" and felt "angry, hostile[,] resentful, critical [and] competitive." On October 19, 1999, Dr. Harris noted that claimant "present[ed] [with] anxious, depressed affect." On October 22, 1999, Dr. Harris noted that claimant "presented [with complaints of] "`difficulty falling asleep, depressed, unable to get up in morning and loss of interest in sex.'" On October 25, 1999, Dr. Harris noted that claimant was "back to work" with a rider. He further noted that claimant was feeling a "lack of support from [employer]." On October 26, 1999, Dr. Harris noted that claimant was feeling employer was unsupportive because "they think I'm a killer."
On November 1, 1999, Dr. Harris noted that, while claimant was "making progress," he was "anxious [regarding his] driving/riding situation." Dr. Harris further noted that claimant was concerned employer was "not patient [with] him" and that claimant had "[f]ears [and] concerns [regarding his] ability to take care of his family." On November 15, 1999, Dr. Harris noted that claimant had "difficulty sleeping [secondary to] recurrent intrusive thoughts[:] leaves him tired, irritable [and] depressed." On November 19, 1999, Dr. Harris noted that claimant was experiencing increased fear at work because he was now riding with another driver "through D.C. traffic," but was "very pleased he was able to drive to [appointment with Dr. Harris] for first time using Beltway." On November 26, 1999, Dr. Harris noted that claimant was "feeling paranoid [regarding] job's support of his recovery efforts."
On December 17, 1999, Dr. Harris noted that claimant had been "serving as a co-driver since" mid-November 1999 and driving with a co-driver since December 8, 1999. On December 23, 1999, Dr. Harris noted that claimant had "[i]ssues related to driving assignment, symptomatic behavior [and] anger [regarding] perceived lack of full support by [employer]." On January 6, 2000, Dr. Harris noted that claimant was feeling "rage, agitation, depress[ion and] hopeless[ness]" and admitted "some suicidal ideations." On January 13, 2000, Dr. Harris noted that claimant was driving "solo," but continued "to feel lack of support at" work. On January 28, 2000, Dr. Harris noted that claimant was angry with because he was "not getting sick days approved" for his therapy sessions and was "assigned [a] route too difficult for his level of recovery at this time." On February 11, 2000, Dr. Harris noted that claimant felt employer was not supporting him because it was pressuring him to schedule his medical appointments "on his days off" and was failing to pay sick leave. On February 15, 2000, Dr. Harris noted that claimant was "still angry" and feeling "set up" to fail by employer. On February 18, 2000, Dr. Harris noted that claimant was "feeling better" and slept the "last few nights [with] no flashback of seeing accident victim run in front of vehicle in his dreams." Dr. Harris further noted that claimant had been riding with another driver on a new route to Baltimore and would be driving "some on his own for next few months."
In addition to documenting claimant's feelings that employer was not being supportive, Dr. Harris's treatment notes also contain several references to claimant's concerns about caring for his family. Throughout the sessions, Dr. Harris indicated in his notes that his treatment of claimant's condition consisted of providing "ventilation," encouragement, support, and reinforcement of claimant's strengths and progress, and focusing on claimant's troubles with problem solving, anger and stress management, and "thought stopping."
On March 3, 2000, Dr. Harris noted that claimant, having begun driving the new route on his own, felt his symptoms were increasing and he was "taking a step...
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