Johnson v. Johnson Plast. and Nat. Sur., Record No. 2290-01-1.

• Decision Date: 26 March 2002
• Docket Number: Record No. 2290-01-1.
• Citation: 37 Va. App. 716,561 S.E.2d 40
• Court: Virginia Court of Appeals
• Parties: Paul JOHNSON v. PAUL JOHNSON PLASTERING AND NATIONAL SURETY CORPORATION.

561 S.E.2d 40

37 Va. App. 716

Paul JOHNSON v. PAUL JOHNSON PLASTERING AND NATIONAL SURETY CORPORATION.

Record No. 2290-01-1.

Court of Appeals of Virginia, Chesapeake.

March 26, 2002.

Jean M. McKeen, Virginia Beach (Robert E. Walsh, Norfolk; Rutter, Walsh, Mills & Rutter, on briefs), for appellant.

Daniel E. Lynch (John T. Cornett, Jr., Richmond; Williams & Lynch, on brief), for appellees. Present: ELDER, FRANK and HUMPHREYS, JJ.

FRANK, Judge.

Paul Johnson (claimant) appeals a decision of the Workers' Compensation Commission (commission) denying his claim for permanent total disability for injury to the brain under Code 65.2-503(C). Claimant contends the commission erred (1) in finding that his filing for "head" injury was not a sufficient filing for injury to the brain, (2) in holding that, even if claimant filed a sufficient claim for injury to the brain, he waived that claim by executing a memorandum of agreement, and (3) in finding that claimant's "brain injury" was not a compensable consequence of the original work-related accident. For the reasons stated below, we affirm in part and remand in part.

FACTS

Claimant worked for employer as a plasterer and drywall hanger. On January 15, 1990, while working on stilts, claimant fell, hitting his right arm and forehead. At the hospital, claimant was diagnosed with a broken wrist. He was referred to Dr. Thomas Meade for further treatment of his wrist. He also was handed two sheets, labeled "Head Injury" and "Wound Care," but the laceration to his eyebrow received no medical treatment beyond cleaning.

The wrist injury was particularly severe, and claimant developed depression. Several months after the fall, claimant began complaining of headaches, back and neck pain, blurred vision, and lack of alertness. Claimant returned to work on February 4, 1991, but only temporarily.

Approximately a year after the accident, claimant began receiving treatment from Dr. Jeremy Stowell for depression related to his wrist injury. At that time, Dr. Stowell did not believe brain damage contributed to claimant's condition. Dr. Raymond Toriano, who also treated claimant, opined that claimant's problems were not related to a head injury, but developed from depression. A cranial CT scan in January 1992 found no abnormalities in claimant's brain.

Instead of improving, claimant's condition deteriorated. In 1995, Dr. Stowell began to believe claimant suffered from cognitive defects and "dementia due to head injury." Dr. Stowell postulated that depression was causing structural changes at the cellular level of claimant's brain, preventing him from working. Dr. Robert Hansen, who evaluated claimant, testified that none of the medical records objectively indicated claimant suffered from a brain injury. Dr. Neil Pugach, who also examined claimant, concluded with "much more than a reasonable degree of certainty that his cognitive symptoms and signs have no direct relationship whatsoever to the injury he sustained on January 15, 1990."

Employer filed a timely First Report of Accident with the commission. Claimant then sent a letter on November 27, 1990, notifying the commission and employer of the "Nature of Injury" from the January accident as "rt. wrist, head, back, left leg and foot."

The parties reached a settlement on this claim and executed a memorandum of agreement, using a form provided by the commission. The only injury listed on the form was "arm." The agreement included temporary total incapacity benefits, temporary partial incapacity benefits, and permanent partial disability benefits. The commission approved the agreement, as well as supplemental agreements relating to claimant's need for psychiatric treatment, on November 21, 1991.

On February 13, 1992, claimant filed for a change of condition award, based on his inability to continue working. He requested temporary total disability payments from November 18, 1991 and continuing. The commission approved a supplemental memorandum of agreement regarding this claim on September 23, 1992, and approved another supplement on January 26, 1993. A January 25, 1993 letter from employer to the commission indicated "the parties have resolved all matters in controversy."

Claimant sent a letter to the commission on May 1, 1999, seeking a "hearing for permanent total disability from August 27, 1999 to the present and continuing. Pursuant to Section 65.2-503-C(3) Claimant has suffered an `injury to the brain which is so severe as application of to render the employee permanently unemployable in gainful employment.'" Claimant's temporary total disability payments were due to terminate on August 26, 1999.

The deputy commissioner denied this claim, reasoning that only brain injuries arising directly out of an accident are compensable, noting that claimant failed to file an appropriate original claim for this injury, and finding that the evidence did not support a claim for injury to the brain. The full commission affirmed this decision, finding the claim for "brain injury" was not filed, that the memorandum of agreement constituted waiver of any other claims, and that the claim was not compensable as a consequence of the original injury.

ANALYSIS

Claimant argues he is entitled to permanent total disability benefits based on an injury to his brain, pursuant to Code § 65.2-503(C)(3).¹ He asserts two theories in support of his claim. First, he alleges injury to his brain occurred when he fell at work in January 1990. Alternatively, he alleges a brain injury developed after January 1990 and is a compensable consequence of the depression that resulted from his wrist injury. Therefore, we must determine whether a claim exists under either of these theories.²

In considering these arguments, we view the evidence in the light most favorable to employer, the prevailing party below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990)

. "Factual findings made by the [commission] will be upheld on appeal if supported by credible evidence." James v. Capitol Steel Constr. Co., 8 Va.App. 512, 515, 382 S.E.2d 487, 488 (1989). However, the commission's application of statutory and case law is not on this Court. Robinson v. Salvation Army, 20 Va.App. 570, 572, 459 S.E.2d 103, 104 (1995).

A. ORIGINAL INJURY

Clearly, an immediate, original injury to the brain arising out of and in the course of employment is compensable under the Virginia Workers' Compensation Act (the VWCA). See Code §§ 65.2-100 et seq. Employer argues, however, that claimant did not properly file such a claim, and, alternatively, that claimant waived the claim when he signed a memorandum of agreement for benefits awarded to compensate him for an arm injury that occurred during the 1990 fall. We find claimant did not properly file a claim for injury to the brain.³

To perfect a claim for benefits under the VWCA, an employee must file notice of the claim with the commission within two years of the accident. Code § 65.2-601. This notice must include all specific injuries an employee contends are compensable. Shawley v. Shea Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975); Garcia v. Mantech Int'l Corp., 2 Va.App. 749, 753, 347 S.E.2d 548, 551 (1986). "Timely filing of an original claim is jurisdictional, and a claimant bears the burden of proving his claim is timely filed." Massey Builders Supply Corp. v. Colgan, 36 Va.App. 496, 502, 553 S.E.2d 146, 149 (2001).

Claimant argues that his listing of "head" as an injury in his letter to the commission meets this filing requirement for a claim of permanent injury to the brain. He conceded at argument that the entire record should be examined to determine whether employer received sufficient notice. The commission held claimant did not file a claim for injury to the brain within the statutory time frame. We agree with the commission.

The purpose of filing with the commission is to provide all parties with notice of the potential issues in a case. Shawley, 216 Va. at 446, 219 S.E.2d at 852-53. While we interpret provisions of the VWCA liberally, see Garcia, 2 Va.App. at 754,

347 S.E.2d at 551; Barnett v. D.L. Bramwell, Inc., 6 Va. App. 30, 34, 366 S.E.2d 271, 272 (1988), the evidence in this record is not sufficient to prove such notice was provided here.

Claimant's initial filing with the commission on November 27, 1990, listed "Nature of Injury" from the January 15, 1990 accident as "rt. wrist, head, back, left leg and foot."⁴ Claimant admits the terms "head" and "brain" are not synonymous.

The record indicates claimant had a laceration to his left eyebrow as a result of the accident, but this injury was never medically treated. The medical reports accompanying his filing pursuant to Commission Rules 1.1(B) and 1.3 do not mention an injury to the brain.

The medical evidence did include discussions of depression and some related psychiatric and cognitive problems. Reports submitted in relation to the original claim discuss severe anxiety, myofascial pain syndrome, concentration and attention span problems, tension headaches, pains throughout the body, visual and auditory hallucinations, and decreased sleep and energy levels. Claimant also suffered stress related to problems at home and at work. Employer paid for counseling and treatment of these mental problems as subsequent conditions arising out of the wrist injury.

Claimant argues that these medical reports of cognitive problems placed employer on notice of an injury to the brain. However, none of the medical evaluations conducted within two years of the accident mention any physical trauma to the brain. The only mention of a head injury, excluding the initial emergency report, appears when a doctor notes claimant could not have fallen on his tail bone in the accident as he had a laceration to his head from the fall. A cranial CT scan of claimant taken on January 20, 1992, "was a `normal study.'" A March 6, 1992 report...