THE VIRGINIA WORKERS' COMPENSATION COMMISSION
B. Davis (Michael J. Beste; Reinhardt, Harper, Davis, PLC, on
brief), for appellant.
H. Hawkins, Assistant Attorney General (Mark R. Herring,
Attorney General; Samuel T. Towell, Deputy Attorney General;
Scott John Fitzgerald, Senior Assistant Attorney General on
brief), for appellee.
Present: Judges Humphreys, Beales and Alston Argued at
J. HUMPHREYS, JUDGE
State Trooper Dustin Hess ("Hess") appeals the
decision of the Virginia Workers' Compensation Commission
("the Commission") denying Hess benefits for a
psychological injury resulting in Post-Traumatic Stress
Disorder ("PTSD") and major depressive disorder.
August 19, 2015, Hess responded to a fatal accident scene. A
vehicle had struck an embankment, overturning and ejecting
the driver into the opposite lane. Shortly thereafter, the
driver was hit by an oncoming vehicle that dragged him for
approximately eight tenths of a mile. As the first responding
trooper, Hess attempted to identify the driver, but the
violence of the wreck had mutilated the body beyond
recognition. Hess, a trooper for ten years who had worked
previous fatalities, described this scene as unfamiliar to
any in his experience. He began to feel disturbed at the
scene, with psychological effects worsening following the end
of his shift. On September 2, 2015, Hess sought psychological
help. He then brought a claim seeking temporary total
disability benefits from this date.
deputy commissioner initially reviewed Hess's claim. In
addition to Hess's testimony, the deputy commissioner
also heard testimony from two of Hess's fellow State
Troopers. Sergeant Christopher Owen ("Owen"), one
of Hess's supervisors, testified that troopers spend
roughly thirty-seven percent of work time investigating motor
vehicle crashes. Owen stated that it would not be unexpected
for a trooper to work a fatality or come across a mutilated
body. Sergeant Jeremy Smith ("Smith"), a supervisor
who was called to assist at the scene of the accident,
testified that he had worked over fifty crashes and that this
was not among the worst he had seen. The deputy commissioner
awarded Hess temporary disability benefits and reasonable and
necessary medical benefits. The Virginia State Police timely
sought review of the deputy commissioner's determination
by the full Commission.
full Commission, upon review of the record, concluded that
Hess had not suffered a compensable injury arising out of and
in the course of employment. The full Commission reversed and
held that the preponderance of the evidence showed the events
surrounding the accident were "not shocking or
unexpected to an experienced state trooper and crash scene
investigator." The full Commission cited the testimony
of Sergeants Owen and Smith, as well as Hess's duties,
training, and position in its decision.
Standard of Review
§ 65.2-706 allows a decision of the Commission to be
appealed to the Court of Appeals. See Code §
65.2-706. "On appeal, this Court views the evidence in
the light most favorable to . . . the prevailing party
below." Advance Auto & Indem. Ins. Co. v.
Craft, 63 Va.App. 502, 508, 759 S.E.2d 17, 20 (2014)
(citing R.G. Moore Bldg. Corp. v. Mullins, 10
Va.App. 211, 212, 390 S.E.2d 788, 788 (1990)). Additionally,
"factual findings of the commission will not be
disturbed if based on credible evidence." Anthony v.
Fairfax Cty. Dep't of Family Servs., 36 Va.App. 98,
103, 548 S.E.2d 273, 275 (2001).
nevertheless, seeks a de novo review of the standard
used by the Commission to prove causation of a "sudden
shock or fright." While causation is a factual
determination, "the standards required to prove
causation and whether the evidence is sufficient to meet
those standards are legal issues which [the Court of Appeals]