Farmington Country Club v. Marshall

• Decision Date: 22 November 2005
• Docket Number: Record No. 0743-05-2.
• Citation: 622 S.E.2d 233,47 Va. App. 15
• Court: Virginia Supreme Court
• Parties: FARMINGTON COUNTRY CLUB, INC. and Great American Insurance Company/Ohio Casualty Group v. Frank Wayne MARSHALL.

622 S.E.2d 233

47 Va. App. 15

FARMINGTON COUNTRY CLUB, INC. and Great American Insurance Company/Ohio Casualty Group v. Frank Wayne MARSHALL.

Record No. 0743-05-2.

Court of Appeals of Virginia, Richmond.

November 22, 2005.

COPYRIGHT MATERIAL OMITTED

Daniel E. Lynch (John T. Cornett, Jr.; Williams & Lynch, Richmond, on briefs), for appellant.

Herbert E. Maxey, Jr. (Herbert E. Maxey, Jr., P.C., on brief), Buckingham, for appellee.

Present: ELDER, BUMGARDNER and FRANK, JJ.

FRANK, Judge.

The Farmington Country Club, Inc., and its insurer, Great American Insurance Company/Ohio Casualty Group (hereinafter collectively "employer"), appeal a decision of the Workers' Compensation Commission holding that employer is responsible for payment for the prescription medication Nexium for Frank Wayne Marshall (claimant) to treat his gastro-esophageal reflux disease (GERD). On appeal, employer contends the evidence is insufficient to prove claimant's GERD is causally related to his compensable industrial injury. It contends further that, even if the GERD is causally related, it is a consequence of a compensable consequence and, thus, that the causal connection is too attenuated to be covered under the Workers' Compensation Act. For the reasons stated, we find the commission erred in finding the necessary causal connection between claimant's industrial injury and his GERD. Thus, we reverse the commission's award of medical benefits.

I. BACKGROUND

On September 6, 2000, while working as a painter for employer, claimant fell twelve feet from a ladder onto a wall, injuring his back.¹ He was diagnosed with "T8 through L1 fractures" and "thoracic spinal cord contusion with an ASIA level B paraplegia." He received emergency treatment and spent five weeks in a rehabilitation facility.

While in the rehabilitation facility, claimant received numerous medications for pain, muscle spasms, and insomnia. He also was prescribed various medications for indigestion nausea, bloating, and gas, including Famotidine, Maalox, Simethicone, and a "GI cocktail" of "lidocaine viscous" and "donnatal elixir." On claimant's discharge from the rehabilitation hospital on October 17, 2000, he was instructed to continue taking numerous medications for pain. He was also prescribed Protonix, a drug similar to Nexium, to be taken as needed. Finally, he was "instructed ... to wear a soft corset" and "to use his wheelchair as provided with no unassisted ambulation."

Pursuant to a commission award entered May 21, 2001, claimant received medical benefits and ongoing temporary total disability benefits beginning September 7, 2000. In September 2002, claimant began treatment with Dr. Robert L. Muller, a licensed clinical psychologist. Dr. Muller noted claimant experienced chronic pain and had significant depression and anxiety secondary to his medical problems and permanent disability. Claimant obtained treatment from Dr. Muller intermittently through at least January 2004.

In 2004, nearly 4 years after the injury, claimant was initially diagnosed with GERD. On June 18, 2004, family physician Dr. William R. Dandridge prescribed Nexium for the treatment of claimant's GERD. Claimant sought payment from the employer for the prescription, and when employer denied coverage, claimant sought a ruling by the commission.

Medical evidence before the commission included statements from several of claimant's treating physicians. Dr. Alan Alfano, one of the physicians who treated claimant at the rehabilitation facility shortly following his injury, was asked, "[P]lease advise of your opinion as to whether or not Mr. Marshall's GERD is a result of his back injury...." In response, Dr. Alfano opined on July 15, 2004, that "I don't believe that [claimant's] GERD is [d]irectly caused by his [spinal cord injury]. However, I do believe that it is indirectly related to his injury in that it is likely exacerbated by stress. I have referred the treatment of his GERD to his [primary care physician]." (Underlining in original.)

On July 27, 2004, Dr. Martin D. Katz, a partner of Dr. Dandridge, opined as follows: "[Claimant] had no history of gastric reflux or gastric ulcer prior to his fall in September of 2000. The emotional and physical stress he endures everyday as a result of his injuries from that fall may have caused his present gastrointestinal problems."

Claimant also obtained an opinion from Dr. Muller, his treating licensed clinical psychologist. On August 2, 2004, Dr. Muller wrote:

Mr. Marshall asked me to comment on his recent diagnosis of an acid reflux disorder. The past few years Mr. Marshall has been experiencing significant anxiety & depression stemming from his physical disabilities and change of life. His stress level certainly must be considered as an etiological factor for the acid reflux & also considered to significantly exacerbate his symptoms.

In a determination made on the record, the deputy commissioner found the medical opinions of Drs. Muller and Alfano "persuasive in implicating stress caused by the work accident as a partial cause or exacerbating cause of the claimant's GERD." The deputy also rejected employer's argument that claimant's GERD nevertheless was not covered because it was a consequence of a compensable consequence. Because claimant's compensable back injury caused symptoms of emotional and physical stress, which, in turn, caused or aggravated claimant's GERD, the deputy held the GERD was a compensable consequence directly linked to the original injury. The deputy further opined:

Our decision in the present matter turns upon a rather subtle distinction. Had we found that the GERD condition causing the need for the disputed medication was caused by depression resulting from physical disabilities and pain resulting from the work accident, we would have ruled against the claimant. This chain of causation is similar to the brain injury resulting from depression caused by the physical injury to the claimant's wrist caused by the work accident in Paul Johnson Plastering [v. Johnson, 265 Va. 237, 576 S.E.2d 447 (2003)]. In the present matter, however, we find that the GERD condition is directly caused or aggravated, at least in part by emotional and physical stress resulting from the work injury. Put another way, this is not a case where stress from the physical injury causes depression which, in turn, causes GERD. Rather, the stress directly causes (or aggravates or exacerbates) the GERD.

On employer's request for review, the commission unanimously affirmed, agreeing with the deputy's findings of fact and conclusions of law. It relied on the decision in Berglund Chevrolet, Inc. v. Landrum, 43 Va.App. 742, 601 S.E.2d 693 (2004), in which an employer was held responsible for a prescription to treat erectile dysfunction caused, at least in part, by pain and medicines related to a compensable work accident. It also relied on case law holding that where stress from a work accident causes depression, that depression is covered as a compensable consequence.

Employer noted this appeal.

II. ANALYSIS

An accidental injury that arises out of and in the course of a claimant's employment is compensable under the Workers' Compensation Act. See, e.g., Amoco Foam Prods. Co. v. Johnson, 257 Va. 29, 32, 510 S.E.2d 443, 444 (1999). The "causal connection" necessary for compensability "is established when it is shown that an employee has received a compensable injury which materially aggravates or accelerates a pre-existing latent disease." Justice v. Panther Coal Co., 173 Va. 1, 6-7, 2 S.E.2d 333, 336 (1939), cited with approval in Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985). The disease caused or aggravated may be physical or emotional. For example, when the original injury produces stress, thereby causing depression or aggravating a pre-existing case of depression or some other emotional or mental condition, the resulting disability is compensable. Yellow Freight Sys. v. Robinson, 37 Va.App. 436, 441, 559 S.E.2d 381, 383 (2002). Generally speaking, an employer's liability for an industrial injury extends to "`all the medical consequences and sequelae that flow from the primary injury.'" American Filtrona Co. v. Hanford, 16 Va.App. 159, 163, 428 S.E.2d 511, 513 (1993) (quoting 1 Arthur Larson, The Law of Workmen's Compensation § 13.11 (1992)).

In keeping with this principle, the Supreme Court has adopted the doctrine of compensable consequences. Immer & Co. v. Brosnahan, 207 Va. 720, 152 S.E.2d 254 (1967). Under this doctrine, a covered employee who suffers a second injury that bears a sufficient "causal connection" to the first injury is entitled to the protections of the Act for the second injury, as well. Amoco Foam Prods., 257 Va. at 32, 510 S.E.2d at 444. "`When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct.'" Imperial Trash Serv. v. Dotson, 18 Va.App. 600, 606-07, 445 S.E.2d 716, 720 (1994) (quoting Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va.App. 276, 283, 348 S.E.2d 876, 879 (1986)). Under these circumstances, "the second injury is treated as if it occurred in the course of and arising out of the employee's employment." Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 100 (1977).

For example, where a claimant with a compensable industrial injury suffers an additional injury in an automobile accident while traveling "to or from a doctor's office for the treatment of [the] work-connected injury," the second injury is "sufficiently causally related to the employment by the mere fact that [the] work-connected injury was the cause of the journey." Brosnahan, 207 Va. at 722-23, 152 S.E.2d at 255-56. This is so even where the direct cause of the automobile accident...