Burney-Divens v. Cmty. Corr. Administration/Commonwealth

• Decision Date: 03 May 2016
• Docket Number: Record No. 1588-15-2
• Court: Virginia Court of Appeals
• Parties: JAMILLA BURNEY-DIVENS v. COMMUNITY CORRECTIONS ADMINISTRATION/COMMONWEALTH OF VIRGINIA

JAMILLA BURNEY-DIVENS v. COMMUNITY CORRECTIONS ADMINISTRATION/COMMONWEALTH OF VIRGINIA

Record No. 1588-15-2

COURT OF APPEALS OF VIRGINIA

MAY 3, 2016

UNPUBLISHED

Present: Judges Petty, Beales and Alston

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE WILLIAM G. PETTY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Brooke T. Alexander (Reid Goodwin, PLC, on brief), for appellant.

Mary Hendricks Hawkins, Assistant Attorney General (Mark R. Herring, Attorney General; Rhodes B. Ritenour, Deputy Attorney General; Scott John Fitzgerald, Senior Assistant Attorney General, on brief), for appellee.

Jamilla Burney-Divens ("employee") appeals a decision of the Workers' Compensation Commission denying her claim. On appeal, employee argues that the Commission erred in finding that she failed to prove a compensable injury by accident arising out of her employment when she was involved in a single-car rollover accident resulting in memory loss regarding the rollover because: (1) The Commission failed to properly apply the facts of her pre-existing migraines, testimony of vision loss, and medical records documenting vision loss to an idiopathic condition, (2) the Commission erred in finding that pleading two alternative theories of compensability concedes an uncertainty that leads to the failure of employee to meet her evidentiary proof for either theory, and (3) the Commission erred in holding that PYA/Monarch and Reliance Ins. Co v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996), controls the facts of this case. For the following reasons, we affirm the Commission's ruling.

I. BACKGROUND

Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite below only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal. "Under settled principles of appellate review, we consider the evidence in the light most favorable to employer, as the prevailing party before the commission." Layne v. Crist Elec. Contr., Inc., 64 Va. App. 342, 345, 768 S.E.2d 261, 262 (2015). "Consistent with this well-established standard, 'we cannot "retry the facts, reweigh the preponderance of the evidence, or make [our] own determination of the credibility of the witnesses."'" Id. (quoting McKellar v. Northrop Grumman Shipbuilding Inc., 63 Va. App. 448, 451, 758 S.E.2d 104, 105 (2014)). "In addition, the commission's 'conclusions upon conflicting inferences, legitimately drawn from proven facts, are equally binding on appeal.'" Id. (quoting McKellar, 63 Va. App. at 451, 758 S.E.2d at 105).

Here, the evidence established that employee worked as a regional administrator for the Community Corrections Administration ("employer"). In that role, she spent approximately seventy-five percent of her time driving, in a car provided for her by employer. On August 20, 2012, employee sustained a compensable injury by accident and injured her lower back. On September 17, 2012, she had a medical appointment for her lower back pain. She did not take her lower back pain medication that morning because the side effects hindered her driving. After her appointment, she picked up her employer-provided vehicle from her home in Martinsville and began driving to Staunton for a meeting with her supervisor. During the drive, she was involved in a single-car accident in which her car left the road and went down an embankment. Employee testified that after driving past a sign for Boones Mill, her vision diminished and started blurring. The next thing she remembered was crawling out of the car and hearing abystander ask if she was all right. She did not remember what specifically caused her to run off the road.

At the hearing before the deputy commissioner, employee alleged that her accident was caused by an idiopathic condition of blurred vision due to her pre-existing migraine headaches. In the alternative, she alleged that the accident occurred when she experienced a black-out episode due to her severe back pain. The deputy commissioner found the evidence insufficient to prove either of these theories. The deputy commissioner therefore ruled that employee's accident was "unexplained" and denied her claim. On review, the full Commission rejected employee's argument that she suffered visual problems as a result of an idiopathic condition. It went on to agree with the deputy commissioner, holding that

[e]ven if we assume that visual problems developed before the accident, it is also unknown whether these problems played a causative role in the accident. We cannot infer from the existence of visual problems alone that they played a causative role in the accident. The accident could have been caused by another vehicle running the claimant off the road, or by the claimant attempting to avoid a deer, or by some mechanical problem with her car, or by some other factor independent of her blurred vision. . . . The claimant simply has no memory of the events which caused the accident, and the evidence she introduced failed to establish the cause.

Employee now appeals.

II. ANALYSIS

Employee alleges the Commission erred in denying her claim for three reasons. We address them in order:

A. Idiopathic Condition

First, employee argues that the Commission erred in finding that she failed to prove that she had a loss of vision from an idiopathic condition which caused her accident. An idiopathic accident is one where the injury was "caused by a preexisting personal disease of the employee."Southland Corp. v. Parson, 1 Va. App. 281, 283, 383 S.E.2d 162, 163 (1985). Whether an accident was caused by an idiopathic condition is a finding of fact. See id. "'[W]e are bound by [the Commission's] findings of fact as long as "there was credible evidence presented such that a reasonable mind could conclude that the fact in issue was proved."'" City of Waynesboro v. Griffin, 51 Va. App. 308, 312, 657 S.E.2d 782, 784 (2008) (quoting Perry v. Delisle, 46 Va. App. 57, 67, 615 S.E.2d 494, 497 (2005)). "Factual findings of the commission will not be disturbed on appeal unless plainly wrong or without credible evidence to support them." Ga. Pac. Corp. v. Dancy, 17 Va. App. 128, 135, 435 S.E.2d 898, 902 (1993). "[T]he existence of 'contrary evidence . . . in the record is of no consequence if credible evidence supports the commission's finding.'" Griffin, 51 Va App. at 312, 657 S.E.2d at 784 (alteration in original) (quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)).

In this case, the Commission found that there was not credible evidence proving the employee had an idiopathic condition that caused her to lose her vision at the time of the accident. The Commission reached this finding because "despite thorough diagnostic testing, claimant's medical providers were unable to identify any idiopathic condition existing at the time of the accident." As the Commission recognized, the medical evidence included notations from multiple physicians regarding employee's history of migraine headaches. However, employee's emergency treating physician noted only a "possible headache prior to crash" and "[u]nclear etiology for why she had [a motor vehicle accident], as labs thus far negative, EKG pending, CXR pending, troponin negative and CT head negative." It was also noted that employee "[w]as driving today belted and had incident-where visual fields blurred and felt acute change of consciousness. Reports no history of seizure but has migraines and does have visual changes from these. Incomplete memory of accident, some retrograde amnesia here in ER, neg[ative] for headache, does have lumbar back pain and nausea." On September 25, 2012, a therapistevaluating employee wrote: "She does not recall the events, and it is not clear if she lost consciousness prior to, or during/after the collision . . . . Head CT was negative for acute abnormalities." Based on this evidence, the Commission found that employee's treating physicians "could find no cause for any such visual problems" and "never indicated that the claimant experienced a migraine at the time of the accident or that the cause of the accident was related to a migraine."

In addition to the inconclusive medical evidence, the Commission did "not accept as reliable [employee's] testimony that she experienced visual problems prior to the accident." On appeal, we defer to this credibility determination. See Layne, 64 Va. App. at 345, 768 S.E.2d at 262. At the hearing before the deputy commissioner, employee testified that prior to her accident she was driving and stated, "I just remember that Boones Mill sign, I remember my brain saying, there's Boones Mill. And then things begin to fade out . . . ." Employee did not remember anything from that point until she was in the crashed car and a bystander asked if she was all right. The medical evidence confirmed that employee had "significant memory problems regarding the events of the accident."

The Commission also stated that "at best, the evidence reflects that the claimant experienced some visual problems at some time around the time of the accident. . . . [W]e decline to infer the symptoms were caused by a migraine . . . ." Employee testified that she had a history of migraines since the twelfth grade and that her migraines were associated with loss of vision. Employee remembered having blurred vision at the time of the accident but could not remember whether she was having a migraine. The Commission noted that "the claimant herself, who certainly knows her migraine symptoms, failed to testify that she was experiencing migraine symptoms at the time of the accident."

Because employee's testimony and the medical evidence presented were inconclusive, it was not plainly wrong for the Commission to find that employee did not experience migraine-induced vision loss prior to her accident. Accordingly, the Commission did not err in finding that...