Paul Johnson Plastering v. Johnson, Record No. 020994.

• Decision Date: 28 February 2003
• Docket Number: Record No. 020994.
• Citation: 576 S.E.2d 447,265 Va. 237
• Court: Virginia Supreme Court
• Parties: PAUL JOHNSON PLASTERING, et al. v. Paul JOHNSON.

576 S.E.2d 447

265 Va. 237

PAUL JOHNSON PLASTERING, et al. v. Paul JOHNSON.

Record No. 020994.

Supreme Court of Virginia.

February 28, 2003.

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

Jean M. McKeen (Robert E. Walsh, Norfolk; Rutter, Walsh, Mills & Rutter, on brief), for appellee.

PRESENT: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and CARRICO,¹ S.J.

Opinion by Justice ELIZABETH B. LACY.

This appeal involves an employee's claim that he suffered a brain injury and is entitled to permanent total disability benefits pursuant to Code § 65.2-503(C)(3).

Paul Johnson was employed as a plasterer and drywall installer. On January 15, 1990, he fell while standing on 42" drywall stilts. He was taken to a hospital emergency room, diagnosed with a fracture of the right wrist, and referred to an orthopedist. He was also treated for abrasions on his forehead. Dr. Thomas S. Meade, Jr., an orthopedist, put a cast on Johnson's right arm and told him he could not work for at least two months. In March 1990, Johnson returned to Dr. Meade complaining of neck, hand, back, and leg pain which Johnson attributed to the January accident. In May 1990, Johnson was still complaining of pain in his wrist and lower back and numbness in his left leg. He also complained of vision problems, headaches, and depression. Johnson had residual effects from the wrist fracture and chronic low back pain. He also continued to be depressed, a condition referred to as "chronic depression" by Dr. Meade. Dr. Meade referred Johnson to Dr. Robert A. Nash, a neurologist, for evaluation. In September 1990, Dr. Nash noted that Johnson was no longer in pain but was slightly depressed. Dr. Nash allowed Johnson to begin restricted work duties.

In October 1990, Dr. Nash referred Johnson to Harold J. Kornylak, an osteopath, who apparently saw Johnson through March 1991. During this time Johnson complained of severe headaches, nausea, and difficulty hearing conversations because of "background noise." Although Johnson tried to return to work, Dr. Meade noted that the stress of work was too much for Johnson to handle. At this point, Dr. Meade referred Johnson to Dr. R. Jeremy A. Stowell, a psychiatrist, for treatment because Johnson was "chronically depressed" and not "tolerating his job well."

Dr. Stowell diagnosed Johnson as having a major depressive disorder and recommended medical management. Dr. Raymond G. Troiano performed a neurological consultation, reporting in August 1991 that Johnson's headaches, dizziness, and other neurological problems were related to depression which "could be triggered" by the head injury. Dr. Troiano recommended a CT imaging of the brain² which was performed by Dr. Mark Cramer on January 20, 1992. His impression of the CT scan results was that it was a "normal study" and showed no signs of brain damage.

Johnson filed a claim for workers' compensation benefits by letter dated November 27, 1990 in which he referred to the January 1990 accident as causing injury to his "rt. wrist, head, back, left leg and foot." The employer agreed that Johnson had suffered a compensable injury by accident and Johnson received payments for both temporary total and temporary partial disability based on the wrist injury. In 1993, the Commission entered an order based on a memorandum of agreement between Johnson and the compensation insurance carrier providing that Johnson was entitled to payment of his medical bills and temporary total disability benefits of $382.00 a week beginning December 11, 1991.

The required payments were made and medical bills were paid for the following eight years. During that time, Johnson continued to suffer from depression and associated problems and was treated by a number of doctors including Drs. Meade, Stowell, and Kornylak. Dr. Stowell referred Johnson to Dr. James P. Polk for evaluation of Johnson's cognitive defects, depression, headaches, and hallucinations. Dr. Polk stated in both his 1995 and 1998 reports that Johnson's cognitive defects were "consistent with the diagnosis of a traumatic brain injury" sustained in the January 1990 industrial accident.

In 1998, Johnson was evaluated by Charles DeMark, a certified rehabilitation counselor. DeMark concluded that Johnson was permanently and totally disabled because of his "deficits due to the traumatic brain injury" and his physical limitations resulting from his wrist and back injuries.

On May 1, 1999, three months before the statutory termination of his temporary total disability compensation benefits under Code § 65.2-500(D), Johnson filed an application with the Workers' Compensation Commission for permanent total disability benefits pursuant to Code § 65.2-503(C)(3), claiming that he suffered an injury to the brain. Johnson maintained that his brain injury developed from the depression he suffered as a result of his wrist injury or, alternatively, that the brain injury was caused directly by the blow or trauma to his head when he fell in the 1990 industrial accident. The 1998 reports by DeMark and Dr. Polk were submitted in support of Johnson's application.

At the hearing on Johnson's application, in addition to Johnson's testimony, the deputy commissioner admitted into evidence medical evaluations and notes regarding Johnson's condition including evaluations conducted for purposes of the hearing. Briefly, this evidence included opinions by Johnson's doctors that his disability resulted from a structural change in his brain or a brain injury that developed from his depression which in turn was caused by the injury to his wrist, or, alternatively, from a brain injury suffered when his head hit the ground in the 1990 fall. Opinions of medical experts offered by the employer generally concluded that Johnson did not suffer a brain injury as a result of the 1990 fall and that depression, while causing some cognitive defects, does not cause brain injury, and did not cause the brain injury claimed in this case. Based on this record, the deputy commissioner denied Johnson's claim.

First, the deputy commissioner concluded that prior cases, including Daniel Construction Co. v. Tolley, 24 Va.App. 70, 480 S.E.2d 145 (1997), precluded an award under Code § 65.2-503(C)(3) for an injury that was a subsequent condition caused by an injury sustained in an industrial accident. Therefore, the deputy commissioner held that, if the brain injury claimed by Johnson developed from his depression, it was not compensable because it was not directly caused by the 1990 accident.

The deputy commissioner also denied compensation for a brain injury that Johnson claimed was caused directly by the 1990 accidental fall. The deputy commissioner stated two grounds for this holding. First, the deputy commissioner determined that this claim was untimely because it was not filed within two years of the date of the accident. See Code § 65.2-601. The claim filed in 1990 did not identify an injury to Johnson's brain, and none of the medical records for the time in question referred to an injury to the brain. Further, the memorandum of agreement entered in 1991 recited that the January 1990 accident resulted in an injury to Johnson's arm and that the memorandum settled "all matters in controversy." The deputy commissioner observed that, based on this evidence, when the claim for benefits was made in 1990 and during the two year period following the accident, none of the parties treated or diagnosed Johnson as suffering from a brain injury sustained in the 1990 accident. Therefore, the deputy commissioner concluded that the reference in Johnson's application for benefits to a "head" injury was not an application for benefits based on a brain injury; such an application was not made until 1999 and, therefore, was untimely.

Alternately, the deputy commissioner concluded that the claim would be denied on the merits. The deputy commissioner noted that the medical opinion in the case was

virtually unanimous that the claimant suffers from depression and other psychological difficulties as a result of the pain and disability that he has suffered as a result of his arm injury of January 15, 1990, and he continues to be entitled to medical treatment for those conditions.

Nevertheless, the deputy commissioner was persuaded based on the evidence in the record that Johnson "did not suffer an injury to the brain on January 15, 1990, that resulted in cognitive defects that now render the claimant unemployable."

Johnson appealed this decision to the full Commission. The Commission, like the deputy commissioner, held that Johnson failed to timely file his claim for a brain injury. The Commission further stated that, even if the 1990 claim for a head injury was broad enough to encompass a brain injury, the claimant abandoned his claim for a brain injury when h...