Johnson v. Gen. Dynamics Corp.
| Decision Date | 08 March 2022 |
| Docket Number | 0645-21-3 |
| Court | Virginia Court of Appeals |
| Parties | JENNIFER JOHNSON, WIDOW OF DAVID JOHNSON v. GENERAL DYNAMICS CORPORATION AND NEW HAMPSHIRE INSURANCE COMPANY |
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Mark T. Hurt (The Law Offices of Mark T. Hurt, on briefs), for appellant.
Ramesh Murthy (Penn, Stuart & Eskridge, on brief), for appellees.
Present: Judges Humphreys, Ortiz and Chaney Argued at Lexington, Virginia
The unfortunate circumstances presented in this case necessitate we evaluate and apply Virginia's "identifiable incident" caselaw and the compensable consequence doctrine. Further, they present an opportunity for this Court to consider the legal implications of using a single claim form in the context of multiple alleged injuries by accident. Claimant Jennifer Johnson ("claimant") appeals a decision of the Workers' Compensation Commission ("the Commission") denying her benefits after her husband David Johnson ("Johnson") suffered from sudden cardiac arrest while he was exposed to radar waves at work and later died. We hold claimant failed to establish Johnson suffered an identifiable compensable injury and cannot recover under the Virginia Workers' Compensation Act ("the Act"). Additionally, we hold claimant cannot recover under a negligent first-aid theory because this claim is either a compensable consequence claim that fails when the initial claim is denied or a separate claim that is time-barred. Accordingly, we affirm the Commission's decision.
Johnson worked for General Dynamics ("employer") as an electronic technician for three weeks prior to his death on September 2, 2017. Almost two years later, Jennifer Johnson filed a workers' compensation claim alleging her husband died after an injury at work occurring on August 28, 2017. The claim form alleged, "During Radio Frequency Radiation testing, radar waves triggered arrythmia [sic] cardiac arrest and respiratory arrest that caused death." Claimant listed "[h]eart, [c]ardiovascular system, brain and body as a whole" as the parts of the body injured.
On December 11, 2020, an evidentiary hearing was held before Deputy Commissioner Wise ("the deputy commissioner"). The evidence presented at this hearing showed Johnson was a forty-three-year-old man. Claimant and Johnson's father testified Johnson was "healthy," never went to the doctor, and did not carry a lot of extra weight. However, claimant also testified Johnson smoked almost one half of a pack of cigarettes per day, had a "nightcap" one or two times per week worked 5:00 a.m. to 5:00 p.m., and was recently tired all of the time, sleepwalking three to four times per week. Johnson's father also testified Johnson had a metal plate implant in his jaw due to an earlier car accident.
On the date of Johnson's injury, the co-worker with whom Johnson was working, Blake Thomas ("Thomas"), testified he and Johnson talked normally throughout the shift, and Johnson did not exhibit abnormal behavior. However, Thomas said he looked over near the end of the shift and saw Johnson bent over in his chair. Thomas stated he went to get help. Then, other co-workers began cardiopulmonary resuscitation ("CPR") on Johnson and a representative from human resources came to the testing site with a defibrillator around "five or six minutes" later.
Those attending to Johnson had to call "multiple times" to request a defibrillator. Paramedics then arrived and attended to Johnson. He was taken to the hospital where he was diagnosed with cardiac arrest and hypertension. The medical records also noted his tobacco use and mild obesity. Thereafter, cardiologists Dr. Nick G. Cavros and Dr. John B. Patterson treated Johnson. He died on September 2, 2017.
A majority of the hearing consisted of a battle between experts about whether there was a causative link between Johnson's cardiac arrest and the radar waves he was exposed to at work. Claimant's main expert, environmental toxicologist Dr. Magda Havas ("Dr. Havas"), testified that Johnson's cardiac arrest "was triggered by his exposure to radar in the test chamber." She admitted the levels of radiation exposure in the test chamber were within the Federal Communications Commission's ("FCC") guidelines but argued the exposure still harmed Johnson. Dr. Havas testified that Johnson's three weeks of radar exposure while at work, "for six to eight hours a day," exacerbated by the metal implant, likely made Johnson "electrically hypersensitive" and caused his cardiac problems.
In support of claimant's theory, Dr. Cavros opined there was more likely than not a causal connection between the radar waves and Johnson's cardiac issues. Additionally, Dr. Cavros stated that it was more likely than not that employer's delay in retrieving and using the defibrillator contributed to Johnson's death.
Employer's expert Dr. Stephen L. Bump, an industrial hygienist, rebutted Dr. Havas' conclusions and questioned the methodology of the experiments on which her conclusions were based. Dr. Bump noted that given the low radar exposure at the testing site, approximately 0.5% of the FCC's limit, there was "zero potential for an extreme exposure" and the dangerous effects Dr. Havas described.
Additionally, Dr. Foley, one of employer's medical experts, reviewed the record and determined that Johnson's "severe dilated cardiomyopathy" likely caused his cardiac arrest and Johnson most likely had "an underlying cardiac comorbidity" based on his hypertension, mild obesity, and smoking and alcohol history. Dr. Foley did not believe the evidence supported claimant's theory and questioned Dr. Havas' methodology and conclusions. Dr. Patterson reviewed the medical record and Dr. Foley's conclusions and agreed with Dr. Foley.
After this hearing, the deputy commissioner denied the claim in a February 16, 2021 opinion because claimant failed to prove by a preponderance of the evidence that Johnson's injury and death were caused by "an identifiable incident or sudden precipitating event." Without determining whether claimant had proved causation, the deputy commissioner found that Dr. Havas and Dr. Cavros relied on a theory that Johnson's three-week exposure to radiation caused his death and that this "period of exposure [was] not bound with sufficient rigid temporal precision to constitute an identifiable incident or sudden precipitating event." Additionally, the deputy commissioner determined claimant's negligent first-aid theory was a compensable consequence claim which failed when the initial claim was denied. Alternatively, if claimant argued this theory was a separate cause of action, the deputy commissioner stated the claim was barred by the statute of limitations because it was not timely filed.
Claimant then requested a review by the full Commission pursuant to Code § 65.2-705 and the Rules of the Virginia Workers' Compensation Commission ("Commission Rules"). Claimant argued that the deputy commissioner incorrectly focused on the three weeks of radar exposure rather than "the exposure that occurred at the moment of the onset of the arrest" in finding no identifiable incident. Upon review, in a May 26, 2021 opinion, the Commission affirmed the deputy commissioner's opinion denying benefits because the expert testimony supported the deputy commissioner's conclusion that Johnson's three-week exposure was the alleged identifiable incident or event. Further, the Commission agreed that claimant failed to prove that the exposure constituted an identifiable incident. The Commission also affirmed as to claimant's negligent first-aid theory because it was a compensable consequence claim and alternatively, if a separate claim, not filed within the statute of limitations.[1]
Pursuant to Code § 65.2-706, claimant now appeals to this Court.
A. No Compensable Injury Existed. Claimant argues the Commission erred in denying her benefits because Johnson suffered a compensable injury by an identifiable incident or sudden precipitating event. Claimant argues the Commission erred in treating Johnson's three-week radar exposure as the possible identifiable incident in its identifiable incident analysis. Instead, claimant asserts the Commission should have focused on the specific radar exposure that allegedly triggered Johnson's cardiac event on August 28, 2017. However, even if the Commission did not err in treating the three-week exposure as the possible identifiable incident claimant argues this three-week exposure was an identifiable incident.
To recover benefits under the Act, a claimant must prove "by a preponderance of the evidence, (1) an '"injury by accident" or occupational disease, (2) arising out of, and (3) in the course of, the employment.'" City of Charlottesville v. Sclafani, 300 Va. 212, 221 (2021) (quoting Morris v. Morris, 238 Va. 578, 584 (1989)); Code § 65.2-101. On appellate review of a Commission decision, this Court views "the evidence in the light most favorable to the prevailing party below." Falls Church Constr. Corp. v. Valle, 21 Va.App. 351, 359 (1995). We review the record to "'determine whether credible evidence supports the [c]ommission's finding . . . and, if such evidence exists, [we] sustain the finding.'" Hoffman v. Carter, 50 Va.App. 199, 209 (2007) (quoting Perry v. Delisle, 46 Va.App. 57, 63-64 (2005) (en banc)). In determining whether credible evidence exists to support the Commission's decisions, "the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses." Valle, 21 Va.App. at 359 (quoting Wagner Enters. v. Brooks, 12 Va.App. 890, 894 (1991)); see Thompson v. Brenco, Inc., 38 Va.App. 617, 624 (2002) ...
To continue reading
Request your trial