Food Distributors v. Estate of Ball, 1206-96-4

• Decision Date: 13 May 1997
• Docket Number: No. 1206-96-4,1206-96-4
• Citation: 24 Va.App. 692,485 S.E.2d 155
• Parties: FOOD DISTRIBUTORS and Century Indemnity Company v. ESTATE OF Kenneth Merrill BALL. Record
• Court: Virginia Court of Appeals

Page 155

485 S.E.2d 155

24 Va.App. 692

FOOD DISTRIBUTORS and Century Indemnity Company v. ESTATE OF Kenneth Merrill BALL.

Record No. 1206-96-4.

Court of Appeals of Virginia Alexandria.

May 13, 1997.

Douglas Seymour, Washington, DC (Law Offices of E. Wayne Powell, Richmond, on brief), for appellants.

Kermit L. Racey, Woodstock (Racey & Racey, on brief), for appellee.

Present: MOON, C.J., and WILLIS and FITZPATRICK, JJ.

FITZPATRICK, Judge.

Food Distributors and its insurer (collectively referred to as "employer") contend that the Workers' Compensation Commission ("commission") erred in finding that (1) Kenneth Merrill Ball's (decedent) death by suicide was causally related to his compensable September 5, 1989 injury by accident; and (2) Code § 65.2-306(A)(1) did not bar compensation for the decedent's suicide. We conclude that the suicide was causally related to the earlier injury and that compensation was not barred.

I. BACKGROUND

On September 5, 1989, decedent suffered a compensable injury to his left shoulder when he tripped over a phone cord in his employer's office. His claim was accepted by employer and he underwent successive surgeries to his shoulder in October 1989, February 1990, and October 1990. Ultimately, decedent was diagnosed with post-traumatic impingement syndrome and with a permanent thirty-three percent "impairment of the upper extremity or twenty percent of the whole person." Despite the three operations, rehabilitation, and medication, decedent remained incapacitated, in pain, and depressed.

Following the injury, due to his chronic pain, decedent was unable to work full time or to engage in simple, repetitive tasks. He also suffered from insomnia. The pain began immediately after his injury and continued throughout the rest of his life. Decedent described his pain as an aching in his left shoulder, accompanied by the sensation of pins and needles and numbness throughout his left arm and hand. Decedent's inability to work and to provide for his family led to low self-esteem and depression. He went from being an "outgoing, vibrant person" prior to his injury to becoming "someone who was very morose, moody, and at times angry." Decedent's treating orthopedic surgeon, Dr. Thomas W. Daugherty, referred decedent to Dr. Bernard J. Lewis for psychological counseling.

Before he was seen by Dr. Lewis, decedent's depression worsened, and he attempted suicide in December 1990. He was hospitalized at the Winchester Medical Center and treated by Dr. Bob Lizer. Following his release from the hospital, decedent began individual and group counseling with Dr. Lewis, who became his treating psychologist at the Chronic Pain Program of Psychological Health Associates, Ltd. Decedent continued treatment with Dr. Lewis until his death. Decedent continually took pain medication and antidepressants following his first suicide attempt. Five years later, decedent committed suicide by taking a drug overdose. He was fifty-six at the time of his death, and he is survived by his wife, Mrs. Ball, and two daughters.

Decedent's estate and widow (claimant) filed a claim for benefits with the commission on February 22, 1995 and requested death and other benefits pursuant to the Workers' Compensation Act. In an opinion dated April 16, 1996, the commission relied on Dr. Lewis' opinion regarding causation and the doctrine of compensable consequences to find decedent's action outside the scope of the bar of Code § 65.2-306(A)(1). The commission reviewed the history of decedent's injury, pain, depression, and treatment, as well as evidence presented by Dr. Lewis, Mrs. Ball, Dr. Daugherty, and Dr. Bruce M. Smoller. Based on this review, the commission determined that:

From this record the Deputy Commissioner concluded that the evidence preponderates in establishing a direct and proximate causal connection between the decedent's September 5, 1989, industrial accident and his death on February 12, 1995. We agree. Dr. Lewis has been the treating psychologist since 1990. His extensive reports over the course of his treatment document overwhelmingly the fact that the most significant stressor in the claimant's life was his "intractable pain" resulting in incapacity and depression. Dr. Lewis' unequivocal opinion linking the decedent's death to his chronic pain and resulting depression is supported repeatedly by Dr. Lewis' ongoing assessments. Dr. Smoller's opinion attributing the depression and suicide to other factors has minimal support in the record.

The employer argues that Code § 65.2-306(A)(1) bars compensation for suicide. However, as the Deputy Commissioner noted, Mr. Ball's industrial accident in 1989 was not self-inflicted. His suicide was a consequence of the depression resulting from the compensable accident. Therefore, the claim is not barred by this section of the Act.

Employer appeals the commission's award of benefits to claimant.

II. DOCTRINE OF COMPENSABLE CONSEQUENCES

Employer argues that the commission erred in awarding benefits to claimant because decedent's suicide was an independent and willful act that barred compensation. Code § 65.2-306(A)(1) provides in pertinent part that "[n]o compensation shall be awarded to the employee or his dependents for an injury or death caused by: (1) The employee's willful misconduct or intentional self-inflicted injury." (Emphasis added.) Employer's argument presents an issue not yet addressed by this Court.

It is undisputed that decedent's initial injury in 1989 was compensable. It is also undisputed that "[t]he doctrine of compensable consequences is well established and has been in existence for many years" in Virginia. Williams Industries, Inc. v. Wagoner, 24 Va.App. 181, 186, 480 S.E.2d 788, 790 (1997). This doctrine, also known as the chain of causation rule, provides that " 'where ... the chain of causation from the original industrial injury to the condition for which compensation is sought is direct, and not interrupted by any intervening cause attributable to the [employee's] own intentional conduct, then the subsequent [condition] should be compensable.' " Leadbetter, Inc. v. Penkalski, 21 Va.App. 427, 432, 464 S.E.2d 554, 556 (1995) (quoting American Smelting & Refining Co. v. Industrial Comm'n, 25 Ariz.App. 532, 544 P.2d 1133, 1135 (1976)). Moreover,

[o]nce an injury is compensable, the employer is liable for the full extent of the injury: the fact that complications arise or the injury worsens does not alter the compensable nature of the injury. "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 Service 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)). "In other words, where a causal connection between the initial compensable injury and the subsequent injury is established, the doctrine of compensable consequences extends the coverage of the Workers' Compensation Act to the subsequent injury because the subsequent injury 'is treated as if it occurred in the course of and arising out of the employee's employment.' " American Filtrona Co. v. Hanford, 16 Va.App. 159, 162-63, 428 S.E.2d 511, 513 (1993) (quoting Bartholow Drywall Co. v. Hill, 12 Va.App. 790, 793-94, 407 S.E.2d 1, 3 (1991)).

Although we have long accepted the doctrine of compensable consequences, we have yet to examine its application in the context of death by suicide. However, we are guided by the decisions of our sister states that have considered this issue. Initially, we note the West Virginia Supreme Court of Appeals' observation that "[m]ost [suicide] cases ... present the same pattern of facts: a severe, or extremely painful, or hopelessly incurable injury, followed by a deranged mental state ranging from depression to violent lunacy, followed in turn by suicide." Hall v. State Workmen's Compensation Commissioner, 172 W.Va. 87, 303 S.E.2d 726, 728 (1983). In addressing such circumstances, other states generally apply one of two rules. ¹

Under the minority rule, known as the rule in Sponatski's Case, 220 Mass. 526, 108 N.E. 466 (1915) or the "voluntary wilful choice test," the requisite mental derangement is defined as:

[A]n insanity of such violence as to cause the victim to take his own life through an uncontrollable impulse or in a delirium of frenzy "without conscious volition to produce death, having a knowledge of the physical consequences of the act."

1A Arthur Larson, Workmen's Compensation Law § 36.21, at 6-162--163 (citation omitted) (emphasis added). Additionally, this rule proscribes the following behavior:

[W]here the resulting insanity is such as to cause suicide through a voluntary wilful choice determined by a moderately intelligent mental power which knows the purpose and the physical effect of the suicidal act, even though choice is dominated and ruled by a disorderly mind, then there is a new and independent agency which breaks the chain of causation arising from the injury.

Id. This minority rule is steadily losing ground. ²

The rule adopted by the majority of states is known as the "chain of causation" rule which provides that suicide is compensable if the injury produces mental derangement and the mental derangement produces suicide. Larson, supra § 36.00 at 6-160.

This theory focuses not upon any particularized state of mind or mental disease, but upon the causal link between a work-related injury and ultimate death by suicide. The rationale ... of the rule is grounded in advances in modern psychiatry and a recognition that volition may be negated by a deterioration in mental health short of insanity or derangement. Where a direct causal link can be established between a...