Oliver v. Suffolk, 090821 VAWC, VA00001578357

Docket NºJurisdiction Claim VA00001581720, VA00001578357
Case DateSeptember 08, 2021
CourtVirginia
RALPH OLIVER
v.
SUFFOLK, CITY OF VIRGINIA RISK SHARING ASSOCIATION, Insurance Carrier
VIRGINIA RISK SHARING ASSOCIATION, Claim Administrator
RALPH OLIVER
v.
SUFFOLK, CITY OF VIRGINIA RISK SHARING ASSOCIATION, Insurance Carrier
VIRGINIA RISK SHARING ASSOCIATION, Claim Administrator
Jurisdiction Claim Nos. VA00001581720, VA00001578357
Claim Administrator File Nos. 01WC1835393, 01WC1734081
Virginia In The Workers’ Compensation Commission
September 8, 2021
          Date of Injury April 13, 2018           Philip J. Geib, Esquire For the Claimant.           Ralph L. Whitt, Jr., Esquire For the Defendants.           OPINION BY MARSHALL COMMISSIONER          REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.          The claimant requests review of the Deputy Commissioner’s February 5, 2021 Opinion finding he failed to prove a compensable injury by accident on either of the dates alleged, or a compensable occupational disease. We AFFIRM.[1]          I. Material Proceedings          The claimant filed a May 15, 2019 claim seeking a medical award for psychological and/or psychiatric injuries suffered as a proximate result of industrial accidents on April 13, 2018 and March 15, 2019. Specifically, the claimant, a firefighter and emergency medical technician, asserted he suffered psychological injuries as a result of responding to an emergency call on April 13, 2018 that turned out to be for his father-in-law’s suicide. He also asserted psychological injuries as a result of responding to a March 15, 2019 emergency call for a suicide by gunshot. He sought medical benefits and temporary total disability beginning March 15, 2019 and continuing. The parties gathered for hearing on January 14, 2020. By oral application at hearing, the claimant alleged post-traumatic stress disorder as an occupational disease. The January 14, 2020 hearing was continued to November 5, 2020.          The defendants disputed the claims on the following grounds that: (1) the claimant did not suffer a compensable injury by accident arising out of and in the course of his employment on either April 13, 2018 or March 15, 2019; (2) the claimant did not suffer from a compensable occupational disease or ordinary disease of life; (3) he was not disabled as a result of any compensable accident or disease; (4) he was not disabled as alleged; and (5) he failed to make reasonable efforts to market his residual work capacity.          The record closed on January 19, 2020 following the submission of the transcripts of four witness deposition transcripts. The Deputy Commissioner issued a February 5, 2021 Opinion. He found the claimant failed to meet his burden of proof. Citing Hess v. Virginia State Police, 68 Va. App. 190 (2017), he found that, given the claimant’s training and experience, encountering a deceased subject was insufficient to establish the April 13, 2018 incident was an injury by accident. He further explained:
Two more factors undermine a finding of compensability. First, in Hess, the Court of Appeals rejected a subjective standard for the evaluation of whether a sudden shock or fright had occurred for a finding of compensability. Other than the relationship with the deceased, Oliver presented no evidence to distinguish his encounter on April 13, 2018 with any other scene with a fatality he had previously experienced. Second, the personal nature of the shock and fright Oliver experienced on April 13, 2018 weakens rather than strengthens the connection between this incident and his work. Given Oliver’s previous ability to handle other similar scenes in a professional, detached manner, his testimony indicates that the dread he felt before arriving on the scene of his father-in-law’s suicide as well as the emotions he experienced after arriving and realizing his worst fears arose because of the personal relationship with the victim and not from the expected duties of his job. While Oliver proved that the incident that occurred on April 13, 2018 occurred in the course of his employment, there is insufficient evidence to find that he suffered a compensable accident arising out of his employment.
(Op. 8.) The Deputy Commissioner further found the March 15, 2019 incident, in which the claimant responded to a suicide call with circumstances similar to his father-in-law’s death, was not a compensable injury by accident. He found the facts of the March 15, 2019 incident were indistinguishable from Hess, and that “Oliver’s psychological reaction to the incident on March 15, 2019, as with his reaction to the incident on April 13, 2018, arose from personal rather than work related reasons.” (Op. 9.)          The Deputy Commissioner also denied the claim for post-traumatic stress disorder (PTSD) as a disease. He found the claimant’s PTSD was an ordinary disease of life. He found the claimant failed to meet his burden under Virginia Code § 65.2-401 because “his psychological problems arose not from his employment but from the personal nature of the exposures he had on April 13, 2018 and March 15, 2019.” (Op. 10.) In the alternative, he found the claimant did not suffer a compensable occupational disease pursuant to Virginia Code § 65.2-400.          The claimant filed a request for review. He assigns error to the Deputy Commissioner’s finding that he did not prove he suffered a compensable injury by accident on April 13, 2018 or March 15, 2019.[2] II. Findings of Fact and Rulings of Law          “To be compensable as an injury by accident, a purely psychological injury must be causally related to a physical injury or be causally related to an obvious sudden shock or fright arising in the course of employment.” Chesterfield Cty. v. Dunn, 9 Va...

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