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Hess v. Virginia State Police

Court of Appeals of Virginia

November 14, 2017

DUSTIN HESS
v.
VIRGINIA STATE POLICE

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Craig B. Davis (Michael J. Beste; Reinhardt, Harper, Davis, PLC, on brief), for appellant.

          Mary 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 Richmond, Virginia

          OPINION

          ROBERT J. HUMPHREYS, JUDGE

         Virginia 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.

         I. Background

         On 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.

         A 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.

         The 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.[1] 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.

         II. Analysis

         A. Standard of Review

         Code § 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).

         Hess, 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] must ...


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