PAXTON LEPAGE
v.
ARLINGTON COUNTY ARLINGTON COUNTY, Insurance Carrier
HELMSMAN MANAGEMENT SERVICES, Claim Administrator
Jurisdiction Claim No. VA02000032277
Claim Administrator File No. 80DE74718
Virginia Workers’ Compensation
Virginia In The Workers’ Compensation Commission
March 12, 2021
Date
of Injury: July 18, 2018
James
E. Swiger, Esquire For the Claimant.
Ryan
Samuel, Esquire For the Defendant.
REVIEW
on the record by Commissioner Marshall, Commissioner Newman,
and Commissioner Rapaport at Richmond, Virginia.
OPINION
RAPAPORT Commissioner
The
defendant requests review of the Deputy Commissioner’s
September 25, 2020 Opinion finding the claimant suffered
post-traumatic stress disorder (“PTSD”) as a
compensable ordinary disease of life. We AFFIRM.
I.
Material Proceedings
On
April 11, 2019, the claimant filed a Claim for Benefits
alleging he suffered PTSD as an occupational disease with a
date of diagnosis of July 18, 2018. The claimant sought
medical benefits and temporary total disability benefits from
January 15, 2019 through March 8, 2019.
The
parties agreed the claimant earned a pre-injury average
weekly wage of $1,359.67. The defendant agreed to the period
of disability claimed, subject to their defenses.
The
defendant defended the claim on the grounds the claimant did
not suffer an occupational disease or a compensable ordinary
disease of life arising out of his employment.
Deputy
Commissioner Plunkett conducted an evidentiary hearing on
July 2, 2020. The parties also submitted post-hearing
position statements to address the case law and uncontested
facts of the case.
On
September 25, 2020, Deputy Commissioner Plunkett held the
claimant suffered a compensable ordinary disease of life of
PTSD, pursuant to Virginia Code § 65.2-401. She found
the claimant’s credible testimony and the medical
evidence established his PTSD was caused by multiple
stressful events in his work as a firefighter paramedic. She
credited the opinions of Drs. Singh and Morris, the
claimant’s treating psychiatrists. She awarded medical
benefits, pursuant to Virginia Code § 65.2-603, and
temporary total disability benefits from January 15, 2019
through March 8, 2019, based on the parties’
stipulation.
The
defendant requests review of the Deputy Commissioner’s
decision.
[1] The defendant maintains the medical
evidence does not establish the claimant has PTSD, and, in
the alternative, the medical evidence is not clear and
convincing that causes outside of his employment did not
contribute to his PTSD.
II.
Findings of Fact and Rulings of Law
Virginia
Code § 65.2-401 provides, in pertinent part, that:
An ordinary disease of life to which the general public is
exposed outside of the employment may be treated as an
occupational disease for purposes of this title if each of
the following elements is established by clear and convincing
evidence, (not a mere probability):
1. That the disease exists and arose out of and in the course
of employment as provided in § 65.2-400 with respect to
occupational diseases and did not result from causes outside
of the employment, and
2. That one of the following exists:
a. It follows as an incident of occupational disease as
defined in this title; or
b. It is an infectious or contagious disease contracted in
the course of one’s employment in a hospital or
sanitarium or laboratory or nursing home as defined in §
32.1-123, or while otherwise engaged in the direct delivery
of health care, or in the course of employment as emergency
rescue personnel and those volunteer emergency rescue
personnel referred to in § 65.2-101; or
c. It is characteristic of the employment and was caused by
conditions peculiar to such employment.
“Clear
and convincing evidence” has been defined as follows:
[T]hat measure or degree of proof which will produce in the
mind of the trier of facts a firm belief or conviction as to
the allegations sought to be established. It is intermediate,
being more than a mere preponderance, but not to the extent
of such certainty as is required beyond a reasonable doubt as
in criminal cases. It does not mean clear and
unequivocal.
Lanning v. Va. Dep’t of Transp., 37 Va.App.
701, 706-07 (2002) (citing Nat’l Fruit Prod. Co. v.
Staton, 28 Va.App. 650, 654 (1998)). The claimant has
the burden to prove all the elements of Virginia Code §
65.2-401, including that the disease did not result from
causes outside of his employment. See Steadman v. Liberty
Fabrics, 41 Va.App. 796, 806 (2003).
We
agree with the Deputy Commissioner’s decision.
[2] The
evidence in the record is sufficient to meet the
claimant’s burden of proof he suffers from compensable
PTSD, pursuant to Virginia Code § 65.2-401.
At the
hearing, the claimant, a firefighter/EMT for the employer
since August 2008, testified he had a May 2018 incident at
work in which he lost...
