Artis v. Ottenberg's Bakers, Inc., Record No. 2157-03-4.

Docket NºRecord No. 2157-03-4.
Citation45 Va. App. 72, 608 S.E.2d 512
Case DateFebruary 08, 2005
CourtCourt of Appeals of Virginia

Craig A. Brown, Alexandria (Ashcraft & Gerel, LLP, on brief), for appellant.

Joseph F. Giordano, McLean (Andy M. Alexander; Semmes, Bowen & Semmes, P.C., on briefs), for appellees.



Ottenberg's Bakers, Inc. ("employer") discharged appellant Phillip L. Artis for cause after Artis staged a robbery in an attempt to murder a co-worker. Following his termination, Artis filed a claim with the Workers' Compensation Commission, seeking temporary partial disability benefits. The commission denied Artis' claim, reasoning that Artis had forfeited his right to temporary disability benefits because his termination was attributable to his volitional misconduct rather than his disability. On appeal, Artis contends that the commission erred in denying his claim because the misconduct resulting in his termination was, in turn, caused by his compensable psychiatric disorder. For the reasons that follow, we affirm the commission's denial of temporary partial disability benefits.


Artis was formerly employed as a route salesman for employer, a position requiring Artis to drive a bakery delivery truck in and around the Washington metropolitan area. On October 2, 1999, Artis was driving a delivery truck along Interstate 66 in Fairfax County while en route to one of employer's customers. At approximately 3:45 a.m., Artis came upon an apparent "road rage" incident on the interstate. Several people involved in the incident got out of their vehicles and ran across the highway in front of Artis' truck. The last person attempting to cross the highway darted directly in the path of the truck. Although Artis tried to avoid hitting that individual, he was unable to do so, striking and killing the pedestrian.

Artis, who was in a "daze" and hyperventilating after the accident, called employer to report the incident. Artis told his manager that he was too distraught to finish the shift, but the manager informed him that Artis had to complete the delivery route because employer did not have any other employees who could replace him. Artis finished his route, completed his paperwork, and drove himself home.

Two days later, Artis went to the Providence Hospital Wellness Institute, seeking medical treatment for back pain. He was diagnosed with thoracic strain and excused from work through October 10, 1999. On October 11, Artis returned to the Wellness Institute for a follow-up evaluation. Artis reported that he was unable to drive and was suffering from emotional distress because of the accident.

On October 12, 1999, Dr. Cecil Harris, a clinical psychologist, evaluated Artis' mental condition. Artis told Dr. Harris that, after the accident, he began to experience flashbacks, fearing "that it would happen again" and that he would be "thought of as a killer." Those feelings caused Artis to experience "depression to the point ... [he] was suicidal." Artis had also developed a fear of driving and crossing the street, occasionally suffered from anxiety attacks, had trouble sleeping and getting out of bed, and had experienced problems maintaining an erection. Artis additionally told Dr. Harris that, three years earlier, he had received psychological treatment for "rage."

Dr. Harris found that Artis' initial mental examination "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." Dr. Harris diagnosed Artis as suffering from post-traumatic stress disorder ("PTSD") and "Adjustment Disorder with Mixed Anxiety and Depressed Mood," and he initiated a "treatment plan of twice weekly, or as needed psychotherapy." As part of his treatment, Artis also took Zyprexa, an anti-depressant. Dr. Harris additionally recommended that, when Artis returned to work, he should initially ride with another driver, then have another driver with him, and, ultimately, drive by himself "when ready."

Thus, when Artis returned to work on October 25, 1999, he assumed a selective duty capacity. He began riding along with other drivers, and he later began to drive by himself, sometimes accompanied by a co-driver. By at least January of 2000, Artis "was returned to full duty with the stipulation if [he] need[ed] help, [he could] ask the night manager and [help] would be provided." According to Artis, the night manager "refused on a few occasions" to provide him with the requested help.

Artis continued to undergo "generally weekly and sometimes bi-weekly" counseling sessions with Dr. Harris through July 2000. During these sessions, Artis reported continuing feelings of rage and depression. Artis still experienced occasional flashbacks, and he was having trouble sleeping. Artis also believed that employer was not supportive of his recovery efforts, and he felt that employer was deliberately trying to get him to leave the company by, for example, denying him a ride-along helper.

After a few months of counseling with Dr. Harris, Artis' psychological condition seemed to be improving. However, on May 4, 2000, employer re-assigned Artis to the route he was driving in October 1999 when he struck and killed the pedestrian. At that point, Artis' psychological condition began to deteriorate, causing him to experience suicidal and homicidal tendencies.

In response to Artis' re-assignment to his former route, Dr. Harris wrote a letter to William Walker, employer's human resources manager. Dr. Harris informed Walker that Artis was "greatly stressed and somewhat regressed," presumably because he had been "scheduled to service the route where his accident occurred on October 2, 1999." Dr. Harris further indicated that, although Artis "has made much progress in his therapy and his rehabilitation is progressing well," Artis "is clinically not ready to service that particular route at this time." Dr. Harris concluded that "[i]t is important that we continue to work closely together towards supporting [Artis'] full recovery." Employer, however, did not re-assign Artis to a different route.

By the beginning of June 2000, Artis was still experiencing homicidal and suicidal tendencies, but he informed Dr. Harris that he was "coping [with the] new route," and had developed sufficient "confidence to move forward now [without] a rider." On June 14, however, Artis told Dr. Harris that, although he had recently been given a ride-along helper, the dispatcher had informed Artis that "there would be no new approval for a new rider." Dr. Harris told Artis that he would write or call employer regarding Artis'"need for a rider from time to time." Artis later testified that, at that point, he blamed Walker for denying him a "ride along helper," and he believed Walker was "operating to get [him] out of the company."

On June 29, 2000, Artis "faked" a robbery of the delivery truck he was driving, and he filed a false police report indicating that he had been robbed of "[b]etween two and three hundred" dollars. Artis staged the robbery because he expected Walker to respond to the scene of the reported robbery, at which time he intended to kill Walker. Artis later testified that his intent was "to do the same harm [to Walker that Walker] was doing to my family." He wanted to "get even" because he felt that Walker failed to adequately respond to Artis' difficulties in performing his job. Artis also testified that he staged the robbery attempt because "the bills were mounting" and he was having difficulty with child support.

About an hour after the staged robbery, Artis was arrested, and he pled guilty to the charge of filing a false police report. After his arrest, employer fired Artis because of his misconduct.

On October 2, 2001, Artis filed a claim for benefits arising out of the accident of October 2, 1999. Artis alleged that he "injured his back and suffered psychological injuries, including post-traumatic stress disorder as a direct result" of the compensable accident. Artis sought medical benefits, an award of temporary total disability from October 2, 1999 through December 17, 1999, and temporary partial disability compensation for various periods following the termination of his employment.

At the hearing before the deputy commissioner, employer stipulated that, in October 1999, Artis experienced a compensable accident arising out of and in the course of his employment. Employer also acknowledged that there was some injury to claimant's back and some psychological injury resulting from that accident. Employer further agreed that some compensation was voluntarily paid and that "psychiatric treatment [was] authorized and paid for at least up until a certain point." Employer defended the claim on the grounds that Artis was not disabled in the nature or to the extent alleged, that there was no causal relationship between the injury and the subsequent periods of disability, and that Artis was not entitled to any partial disability benefits after he was terminated for cause.

Artis contended, however, that he was entitled to post-termination temporary partial disability benefits because the misconduct that led to his termination was caused by his compensable disability. As proof of causation, Artis introduced a letter, dated July 18, 2000, that Dr. Harris had sent to Artis' union president. In this letter, Dr. Harris summarized Artis' diagnosis and treatment for PTSD, concluding that, "Artis discussed in detail the incident of 06/29/00 in therapy. It is my opinion,...

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