Chesterfield County/Fire Dept. v. Dunn

• Decision Date: 27 February 1990
• Docket Number: No. 1246-88-2,1246-88-2
• Court: Virginia Court of Appeals
• Parties: CHESTERFIELD COUNTY/FIRE DEPARTMENT v. Steven Michael DUNN. Record

Page 180

389 S.E.2d 180

9 Va.App. 475

CHESTERFIELD COUNTY/FIRE DEPARTMENT v. Steven Michael DUNN.

Record No. 1246-88-2.

Court of Appeals of Virginia.

Feb. 27, 1990.

Jeffrey L. Mincks, Sr. Asst. County Atty. and Gary K. Oldehoff, Asst. County Atty., on brief, for appellant.

Gregory S. Hooe (Traylor & Morris, on brief), for appellee.

Present: BENTON, COLEMAN and MOON, JJ.

MOON, Judge.

The County of Chesterfield seeks reversal of an award of benefits by the Industrial Commission to Steven Dunn for a post-traumatic stress disorder. We reverse the award because we find no credible evidence to support the commission's finding that the disability resulted from an "injury by accident."

In order to establish an injury by accident, a claimant must prove: (1) an identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change. Lane Co. v. Saunders, 229 Va. 196, 326 S.E.2d 702, 703 (1985). In this case, there was no proof of an obvious sudden mechanical or structural change in Steven Dunn's body.

Dunn was employed by Chesterfield County as a firefighter in October 1984. He was trained as an emergency medical technician. As part of his job, he administered medical aid to injured persons. In September 1985 Dunn provided medical attention to a severely injured man at the scene of an automobile accident. The man later died. Dunn testified that, three to four days later, he began having nightmares, stomach cramps, and anxiety. After that incident, responding to medical calls began to bother him, but he continued in his job until June 1986. During the period September 1985 to June 1986, he responded to many medical calls and performed competently.

On June 17, 1986, a counselor at the County Mental Health Center advised Dunn that he was suffering from post-traumatic stress disorder created by his exposure to accident victims. In March 1987, Dunn's psychologist declared Dunn to be disabled from work as a firefighter. The psychologist reported that the September 1985 incident "precipitated" Dunn's disorder:

It seems significant that the accident which has precipitated this stress disorder was characterized by Steven [Dunn]: (1) working on the patient alone by himself (other team members outside of car) by (2) he was in a small, cramped, unknown and dark space with an accident victim whose facial appearance reminded him of a spooky movie and by (3) that he was alone in the situation for fifteen minutes.

The deputy commissioner determined that Dunn's emotional disability was not a compensable injury. Upon review, the full commission ruled that Dunn's disability was compensable as an injury by accident. In its finding, the commission stated:

The second element, an obvious sudden mechanical or structural change, was proven by the medical records which identified the multiple symptoms of the claimant, symptoms which appeared within three to five days of the incident.

From the record we are unable to find proof of any sudden mechanical or structural change in the body. As the commission observed, the first "symptoms" occurred three to five days after the incident. These "symptoms," which the commission described as manifestations of the change in Dunn's body--agitation, anxiety, panic anxiety attacks, insomnia, increased irritability, personality changes, work avoidance, nausea, diarrhea, and cramps--are not, in themselves, mechanical or structural changes in the body. Even though these "symptoms" developed three to five days after a specific incident, they do not constitute nor do they prove a sudden mechanical or structural change in the body.

In fact, the symptoms are equally characteristic of an ordinary disease of life or a gradual development of a psychological problem as an injury by accident. Prior to the enactment of Code § 65.1-46.1, which now allows for recovery for ordinary diseases of life resulting from conditions of employment, the Supreme Court created but one exception for mental disabilities resulting from employment. To be a compensable as an injury by accident, a purely psychological injury must be causally related to a physical injury or be causally related to an obvious sudden shock or fright arising in the course of employment. See Burlington Mills Corp. v. Hagood, 177 Va. 204, 210-11, 13 S.E.2d 291, 293-94 (1941). Because the legislature has provided recovery for ordinary diseases of life and carefully defined under what circumstances they are compensable, we should not extend Hagood beyond its facts. If the Workers' Compensation Act is to be extended to cover disabilities of the type experienced by Dunn, it is the legislature, not this Court or the commission, which must act.

For these reasons, the order of the Industrial Commission is reversed.

Reversed.

BENTON, Judge, concurring.

I concur in reversing the decision of the commission; however, I do not join in the reasoning stated in the majority's opinion.

Virginia's Workers' Compensation Act defines "injury" to mean "injury by accident." Code § 65.1-7. Thus, "there is no occasion, as a matter of grammar, to read the phrase as if it referred to 'an accident,' and then proceed to conduct a search for 'the accident.' " 1B A. Larson, The Law of Workmen's Compensation § 37.20 (1987) (emphasis in original text). However, in Morris v. Morris, 238 Va. 578, 385 S.E.2d 858 (1989), the Supreme Court explained that the component of the injury by accident test, which requires an "identifiable incident that occurs at a reasonably definite time," see The Lane Co. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703 (1985), is "inevitably 'bounded with rigid temporal precision.' " Morris, 238 Va. at ----, 385 S.E.2d at 864. To prove a compensable injury in Virginia it thus becomes necessary to prove an accident, "e.g., ... blows from falling objects; ... contacts of the body with operating machinery or corrosive chemicals; falls from ladders, cat walks, and the like." Morris, 238 Va. at ----, 385 S.E.2d at 862. It is not sufficient to prove an accidental injury. Id.

The record in this case establishes that the work activity which resulted in Steven Michael Dunn's post traumatic chronic stress syndrome spanned a period of fifteen minutes, during which time he was assisting an injured motorist in a small, cramped, dark space. Morris unequivocally rejects the notion that a time span, even of only several minutes, can be deemed a "reasonably definite time." Id. at ----, 385 S.E.2d at 864. I therefore conclude that Dunn has not proved an accident as required by Morris.

While it is not irrational to conclude that Morris can also be read to require the immediate onset of the injury, see id., 238 Va. at ----, 385 S.E.2d at 862 (the Act "was originally intended to provide coverage for ... injuries immediately resulting from hazards of the work place....") (emphasis added), I do not read Morris to require, as does the majority, the immediate onset of symptoms of the injury.

The commission found that the incident...