Jenkins v. C & T Durham Trucking Co.
| Decision Date | 14 February 2023 |
| Docket Number | 0381-22-1 |
| Court | Virginia Court of Appeals |
| Parties | DARRYL JENKINS v. C & T DURHAM TRUCKING CO., INC. AND ACCIDENT FUND INS CO OF AMERICA |
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Stephen F. Forbes (Forbes & Broadwell, on briefs), for appellant.
Nirav Patel (Franklin & Prokopik, P.C., on brief), for appellees.
Present: Judges O'Brien, Causey and Friedman Argued at Norfolk, Virginia
Darryl Jenkins appeals a decision of the Workers' Compensation Commission denying the portion of his claim seeking benefits for a traumatic brain injury, left hip injury, and lower back injury. Jenkins argues that the Commission erred by admitting the opinion of a psychologist regarding the causation of his claimed brain injury. Jenkins also contends the Commission erred by finding that medical treatments for his claimed brain, hip, and lower back injuries were not causally related to his work accident. For the following reasons, we affirm.
"On appeal from a decision of the Workers' Compensation Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below." Anderson v. Anderson, 65 Va.App. 354, 361 (2015) (quoting Artis v. Ottenberg's Bakers, Inc., 45 Va.App 72, 83 (2005) (en banc)).
In the afternoon of May 20, 2019, Jenkins rear-ended a vehicle while driving a tractor trailer for his employer, C & T Durham Trucking Co., Inc. (C & T Trucking). At a hearing on Jenkins's claim for workers' compensation benefits, a police officer testified that he found Jenkins outside the tractor trailer's cab when he arrived at the scene. The officer, who was not the first responder, testified that he did not know Jenkins's condition before arriving but later spoke to him in an ambulance and found that he "appeared with it, cognitive, clearly speaking to me about what had happened." The officer did not recall observing bleeding or any specific injuries, although he remembered seeing EMTs treat Jenkins. The ambulance transported Jenkins to the hospital where he was "awake alert, and oriented" upon transfer. The ambulance records indicate that Jenkins "complain[ed] of left flank and abdominal pain" and "believe[d] it may have been caused by impacting the steering wheel during the crash." Further, according to the ambulance records Jenkins "report[ed] remaining awake throughout the event with no reported loss of consciousness."
At the hospital, Jenkins advised medical providers that the accident occurred when he "hit another tractor trailer at 60 mph" and that he was wearing a seatbelt and the airbags did not deploy. Jenkins reported "severe" chest and abdominal pain but "denie[d] loss of consciousness and denie[d] altered level of consciousness." He did not report any "specific head or neck complaints." X-rays demonstrated that Jenkins sustained a "[f]racture of the anterior left ninth rib." A CT scan of Jenkins's brain showed "no acute intracranial hemorrhage, midline shift, mass effect[,] or extra-axial fluid collection" and that "[t]he skull base and calvarium are intact." However, the scan showed "chronic microvascular ischemia."
Approximately one week later, Jenkins sought follow-up treatment at In and Out Express Care, complaining of pain in his abdomen, mid-chest, and ribs. Describing the work accident, Jenkins reported that he was "trapped behind the dashboard that was pushed in [and] was extricated by a state trooper." In addition to the rib fracture already identified at the hospital, Jenkins was diagnosed with contusions to the thorax and abdominal wall. Jenkins returned to In and Out Express Care on three more occasions, reporting pain in his ribs and stomach, but was released from care on June 14, 2019, with a note that he was "expected to attain full resolution in 60 days."
Also on June 14, Jenkins began seeing an orthopedic specialist, Dr. Robert Snyder. Jenkins reported continued "pain along the rib cage more anteriorly." Dr. Snyder referred Jenkins to physical therapy to address his "[l]eft rib cage pain with history of rib fracture." Jenkins returned to Dr. Snyder three weeks later, after attending four physical therapy sessions, and reported that he was still experiencing pain "along the left side at the lower portion of the rib cage in the midportion." Dr. Snyder kept Jenkins out of work for three additional weeks effective July 9, 2019, "unless there [was] sedentary duty available for him."
At a follow-up appointment with Dr. Snyder on August 1, 2019, Jenkins reported pain extending into "the hip area on the left" for the first time. Dr. Snyder noted that Jenkins's rib fracture was healing and there were "contusions and bruising involving the left side of the chest and the hip area." Jenkins returned to Dr. Snyder on September 3, 2019, having finished physical therapy. Dr. Snyder noted that Jenkins still had pain in "both the left and right rib areas," but the medical record from that date makes no mention of any hip pain. Dr. Snyder noted an ongoing diagnosis of "[h]ealed rib fractures[,] contusions[,] bruising" and released Jenkins to full-duty work with no restrictions effective September 9, 2019.
At another appointment on October 8, 2019, Jenkins advised Dr. Snyder that he had "not yet returned to work" and could not "stand for long periods of time without experiencing lower back and left hip pain." This is the first instance of Jenkins reporting pain in his lower back. In the medical record, Dr. Snyder reiterated that the rib fracture had healed and Jenkins was released to full-duty work. Dr. Snyder added that "[s]hould [Jenkins] feel that he has other injuries resulting from the accident, he will need to bring these to the attention of his Worker[s'] Comp case manager."
Jenkins saw Dr. Snyder again three months later and had still not returned to work. Jenkins reported that he could not walk and had "pain in both hips as well as in the left and right chest wall." Dr. Snyder recommended a CT scan of the chest wall and prescribed pain medication but explained that he could not address Jenkins's other complaints "unless they [were] included under his Worker[s'] Comp plan." The recommended CT scan demonstrated "[n]o acute rib fractures" and "[n]o significant abnormality in the chest." After reviewing the CT scan, Dr. Snyder determined that Jenkins had reached maximum medical improvement, "need[ed] no further follow[-]up," and "d[id] not require any permanent limitations" on his capacity to work. On February 17, 2020, Dr. Snyder completed a medical questionnaire, indicating that he did not believe Jenkins's claimed left hip injury was causally related to the work accident.
At a medical evaluation with the Department of Veterans Affairs on February 24, 2020, Jenkins reported, for the first time, having suffered a concussion and loss of consciousness in the May 2019 work accident. Jenkins also complained of hip and lower back pain, and radiology findings showed early degenerative hip changes and "[m]ild L5-SI facet disease."
Dr. Garrett Kelly, a family and sports medicine practitioner, examined Jenkins on March 26, 2020. Jenkins also conveyed to Dr. Kelly that he had lost consciousness in the work accident and awoke in the truck with "glass cuts." He reported pain in his left hip and lower back. In a subsequent medical questionnaire, Dr. Kelly concluded that the work accident caused Jenkins's hip pain because, after examining Jenkins and reviewing his medical history, Dr. Kelly found "no known pre-existing cause and no known post-accident cause" and "no indication of malingering or symptom magnification." Dr. Kelly did not elaborate on the cause of Jenkins's claimed lower back pain and acknowledged that "further diagnostic testing, including an MRI, is warranted."
Dr. Kelly also found that Jenkins "exhibit[ed] signs and symptoms of traumatic brain [injury] during [the] clinical evaluation" and referred Jenkins to a concussion clinic for an evaluation by Dr. Edward Walko, a specialist in physical medicine and rehabilitation.
At an evaluation on April 8, 2020, Jenkins told Dr. Walko that he experienced "daily headaches on the left side of his head" ever since his work accident. Jenkins also reported difficulty with memory, blurred vision, and irritability. Jenkins's wife attended the appointment and said that Jenkins was "not the same person since the accident." Jenkins also stated that he continued to have pain in his ribs "as well as pain in the neck and upper back and also the lower back." In a later questionnaire, Dr. Walko concluded, after examining Jenkins and reviewing his medical history, that Jenkins experienced "no prior brain injury of any kind before [the work accident] and ha[d] no history of memory loss or dementia." Dr. Walko agreed that "[b]y history and after a review of medical records, [Jenkins] lost consciousness at the scene of the accident" and opined that Jenkins's reported symptoms were consistent with a traumatic brain injury, closed-head injury, and concussion. Dr. Walko referred Jenkins to Dr. Gregory O'Shanick, a neurology and psychiatry specialist, to address "significant and long-term problems from [Jenkins's] brain injury."
A nurse at Dr. O'Shanick's office evaluated Jenkins for "complaints associated with a work-related semi-truck accident that occurred on May 20, 2019" and noted that he reported "[d]ifficulty sleeping, fatigue, headache, generalized pain, memory changes, vision changes, hearing changes, decreased motivation, and imbalance." The nurse's "diagnostic impressions" included a concussion and post-traumatic headaches "secondary to" his May 2019 work accident.
About two months after...
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