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Jackson v. Ceres Marine Terminals, Inc.

Court of Appeals of Virginia

March 17, 2015

SAMUEL PAUL JACKSON
v.
CERES MARINE TERMINALS, INC. AND TOKIO MARINE AND NICHIDO FIRE INS. CO., LTD

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

Reversed and remanded.

Ira M. Steingold (Steingold & Mendelson, on brief), for appellant.

Lawrence P. Postol (Seyfarth Shaw LLP, on brief), for appellees.

Present: Chief Judge Huff,[*] Judges Chafin and Decker.

OPINION

Page 277

[64 Va.App. 460] MARLA GRAFF DECKER, JUDGE

Samuel Paul Jackson (the claimant) appeals a decision of the Virginia Workers' Compensation Commission (the commission) denying his claim for medical benefits and compensation for temporary total disability. The claimant contends that the commission erred in finding he suffered no compensable injury by accident. We conclude that the commission erred when it held that there is a " risk-of-harm" requirement for a psychological injury to be compensable. Therefore, we reverse and remand for further proceedings.

I. BACKGROUND[1]

On March 28, 2011, the claimant was employed by Ceres Marine Terminals (the employer) as a longshoreman. On that date, while the claimant was operating a forklift, he struck Paula Belamy, a coworker, causing injuries that resulted [64 Va.App. 461] in her death. The claimant testified that he did not realize that he struck Belamy when it happened. He found out that he hit her when another worker flagged him down immediately after the accident. The claimant assisted other workers in an effort to raise his forklift off of her. He was within two to three feet of the victim. Once they were able to lift the forklift, it was apparent that Belamy's leg was wrapped around the rear axle. Other workers untangled her legs so that they could drag her body from underneath the machine. The claimant described Belamy as " pretty mangled, bleeding from the mouth, her arm was mangled[,] . . . basically just flesh, burn marks[,] . . . you could pretty much see the bone in her arm, [and] her wrist and hand were twisted around backwards." The claimant watched the rescue efforts of the police and fire department. They did " several things" to the victim for about five to ten minutes before putting her in an ambulance. Gregory Concepcion, a superintendent for the employer, testified that when he arrived at the accident scene he saw that Belamy was still alive and communicative, although " not vocally." He described it as a " gruesome scene." Concepcion told the claimant to " receive[] help and take [his] time in returning to work."

The claimant saw a variety of medical professionals for mental health treatment after the March 2011 accident. He visited Dr.

Page 278

Margaret Stiles, his primary care physician, on March 29, 2011, a day after the incident. She noted that he was " acutely extremely upset, stressed, calmer now," and prescribed various medications. On April 6, 2011, the claimant saw a treating clinician, Greg Griffin, LCSW, who recommended " brief supportive crisis debriefing counseling." He also recommended that the claimant not return to work for four to six weeks. Dr. Norbert Newfield, a clinical psychologist, first evaluated the claimant on July 11, 2011. Dr. Newfield found that the claimant suffered from post-traumatic stress disorder (PTSD) with " significant levels of anxiety and depression" resulting from the work-related incident. Dr. Newfield began to treat the claimant on a weekly basis. He also recommended that the claimant see a psychiatrist, [64 Va.App. 462] Dr. Deborah Giorgi-Guarnieri. The psychiatrist in turn prescribed various medications for the claimant.

Dr. Patrick Thrasher, a second psychiatrist, conducted an independent medical examination of the claimant on October 3, 2011. He diagnosed the claimant with PTSD and " [m]ajor depression." He also concluded that these diagnoses were causally related to the work incident. On November 15, 2012, Dr. Paul Mansheim, a third psychiatrist, conducted another independent medical examination of the claimant. Dr. Mansheim concluded that the claimant did not suffer from PTSD, because " [h]e did not experience a threat to himself, he was ...


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