COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Ju dge Petty and Senior Judge Coleman Argued at Salem, Virginia

SOUTHWESTERN VIRGINIA MENTAL HEALTH INSTITUTE MEMORANDUM OPINION * BY v. Record No. 0489-06-3 CHIEF JUDGE WALTER S. FELTON, JR. OCTOBER 10, 2006 SHEILA MAE WRIGHT

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Scott John Fitzgerald , Senior Assistant Attorney General (Robert F. McDonnell, Attorney General; Maureen Riley Matsen, Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General, on brief), for appellant. (Hilary K. Johnson; Hilary K. John son, P.C., on brief), for appellee. Appellee submitting on brief.
Southwestern Virginia Mental Health Institute (employer) asse rts that the Virginia Workers’ Compensation Commission (commiss ion) erred in awarding bene fits to Sheila Mae Wright (claimant) for delayed post-trauma tic stress disorder arising out of a sexual assault that occurred while claimant was on dut y monitoring patients in employer’s dining facilit y. Finding credible evidence in the record to support the commission ’s finding that claimant ’s psychological disability resulted from a compensable injury by accide nt, we affirm the co mmission’s award.
BACKGROUND “On appeal, factual findings of the commission will not be disturbed if based on credible evidence.” Anthony v. Fairfax County De p’t of Family Servs. , 36 Va. App. 98, 103, 548 S.E.2d 273, 275 (2001) (citing Morris v. Badger Powhatan/Figgie Int’l, Inc. , 3 Va. App. 276, 279, 348

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - S.E.2d 876, 877 (1986)). “Whether credible evidence exists to support a factual finding is a question of law which is properly reviewable on appeal.” Hercules, Inc. v. Gunther , 13 Va. App. 357, 361, 412 S.E. 2d 185, 187 (1991) (c iting Ablola v. Holland Road Auto Center, Ltd. , 11 Va. App. 181, 183, 397 S.E. 2d 541, 542 (1990)). “C ausation is a factual determination to be made by the commission, but the standa rds required to prove causatio n and whether the evidence is sufficient to meet those standards are legal issues which we must determine.” Anthony , 36 Va. App. at 103, 548 S.E.2d at 276 (citing Morris v. Morris , 238 Va. 578, 385 S. E.2d 858 (1989)). In determining whether credible evidence exists to support the commission’s factual findings, we view the evidence in the light mo st favorable to claimant, the pa rty prevailing below. Crisp v. Brown’s Tysons Corner Dodge, Inc. , 1 Va. App. 503, 504, 33 9 S.E.2d 916, 916 (1986). So viewed, the record shows th at claimant worked as a psychiatric aide for employer at Southwestern Virginia Ment al Health Institute, a facility that houses sexual offenders, among other patients. On June 30, 2002 while claimant was monitoring patients in employer’s dining room, Rusty Lewis and Chester Bo bbitt, both convicted sex offenders and patients in empl oyer’s facility, approached her. At the hearin g before Deputy Commissioner Bu rchett, claimant testified that Lewis and Bobbitt got really close up in my face. They got so close that I couldn’t move. I asked them to step back away from me, and they started laughing. Then Rusty Lewis star ted rubbing my right arm, and Chester Bobbitt started rubbing my left arm, and they continued to laugh. I asked them to stop. I asked them to stop more than once. Chester Bobbitt reached to grab my left breast. * * * * * * * I went to move back. He did pinch it. When I moved back, I realized I was up against the wall , and I could do nothing. I was trapped in that corner. I don’t re member if it was Rusty or Chester that took the radio out of my hands. Then I realized they had taken control.- 3 - Claimant explained that “[i]t wa s something that happen ed really fast, but it felt like it went on forever.” Claimant was able to push her way through both men to reach the door beside her, obtain her radio, and put her key in the door. As claimant was going through the door, “Chester Bobbitt said he wanted to f-u-c-k [h er]. He grabbed [her] crotch ar ea, and they continued to laugh.” Claimant immediately reported the incident to Peggy Brooks, the shif t head nurse; Mike Stockberger, the shift s upervisor; and Freddie Counts, the RN who worked with he r on Ward G. She also reported the incident to her supervis or, Penny Pickle, the day shift head nurse, the following morning. Claimant told her supervisor that she was “going to try to be okay” and that she would continue working. She did not report the incident to la w enforcement officials, and thereby was not entitled to the presumptio n provided in Code § 65.2-301(A). 1
Claimant conceded that ther e were no visible marks left on her body where the men had touched her. However, by Ja nuary 2003 she began noticing that “something was wrong.” She reported that she suffered pain in her joints, naus ea, severe insomnia, panic attacks, anxiety, and irritability. In March 2003, cl aimant saw Dr. Br ian H. Steifel, a family practitioner with Royal Oak Medical Associates. Dr. Steifel reported claimant complained of symptoms of chest congestion, cough, sore throat, and decreased energy. In April 2003, claimant told Dr. Patterson, her personal physician and a member of Royal Oak Medical Associates, that sh e was “[u]nder a great deal of pressure at her work plac e” and that she was “depresse d, nervous, [and] anxious.” In May 2003,

1 Code § 65.2-301(A) provides: Any employee who, in the course of employment, is sexually assaulted . . . and promptly reports the assault to the appropriate law-enforcement authority, where the nature of such employment substantially increases the risk of such assault, upon a proper showing of damages compensable unde r this title, shall be deemed to have suffered an injury arising out of the employment and shall have a valid claim for work ers’ compensation benefits.- 4 - claimant saw Lynda Warner, a licensed clinical so cial worker. Warner di agnosed claimant with major depression. 2 She continued to counsel claimant be fore referring her to Dr. Douglass, a psychiatrist, in July 2003. In August 2003, claimant sa w Dayle Zanzinger, a family nu rse practitioner with Royal Oak Medical Associates. Zanzinge r noted that claimant was under a lot of emotional stress. Reports she was sexually assaulted in July of 2002 by 2 patients. She first discussed this with JEP in August of 2002. 3 She is seeing Linda Warner and just recently revealed this information to her. Zanzinger diagnosed claimant with severe stress and probable post-traumatic stress disorder. Royal Oak Medical Associates completed a “Workman’s Compensatio n Injury Report” on August 18, 2003. Th e report indicated that claimant suffered from post-traumatic stress disorder. After completing a psychiatric evaluation of clai mant, Dr. Douglass concurred, diagnosing claimant with delayed post-traumatic stress disorder on Se ptember 9, 2003. Dr. Do uglass referred claimant to Dr. Ludgate, a speciali st in post-traumatic stress disorder, for treatment. Dr. Ludgate evaluated claimant in October 20 03. By letter dated January 13, 2004, Dr. Ludgate concluded that claimant suffered delaye d post-traumatic stress disorder as a “direct consequence of the sexual assault she endured at her place of work on June 30, 2002 .” He noted that “[a]fter the assault she init ially went back to work, despite significant psychological distress (anxiety and hypervigilance).” Dr . Ludgate stated that claimant was unable to work due to her incapacitating symptoms, and opined that her condition should qual ify as a workers’ compensation condition:

2 A review of claimant’s me dical records shows that she was undergoing treatment for depression prior to the June 30, 2002 sexual assault.

3 Zanzinger later corrected the record to read, “Discussion was on April 2003 instead of August 2002.”- 5 - The presence of a serious psychi atric disorder precipitated by a work assault is comparable to a disease in that the words disorder and disease are interchangeable in this regard. Also, she has suffered a work injury or trauma but this is of a psychological nature, which is as incapacita ting as any physical injury. The deputy commissioner dete rmined that claimant had fa iled to prove a compensable injury by accident, noting that, “although the actions of the two inmates were egregious and noxious, we cannot say the circumstan ces were so shocking, frightenin g, traumatic, catastrophic, or unexpected to constitute a compensable injury under the Act.” In support of his de termination, the deputy commissioner reas oned that there was “no evidence that the conduct of the two inmates was directed at claimant because of her status as an employee with this employer.” The deputy commissioner also articulated his concern that clai mant had not reported th e sexual assault to the numerous health care professionals from whom she was seeking treatment until August 15, 2003. From this observation, th e deputy commissioner found that “the opinions expressed by Dr. Ludgate and Dr. Douglass relative to claimant’s condition being caused by the inci dent in question lack probative value because their opinions are not ba sed upon complete and accurate histories.” Accordingly, he concluded that “there is no probativ e medical evidence to caus ally relate any injury or condition to” the sexual assault. On review, the full commission reversed, finding that the J une 30, 2002 se xual assault was “sufficiently dramatic and unexpect ed so as to shock the conscience .” The commission stated that “[w]hile [] claimant’s work environment place d her where unacceptable conduct was anticipated and recurring, we do not think that touching where she was to uched could be anticipated.”
ANALYSIS Employer argues the trial court erred in dete rmining that claimant’s delayed post-traumatic stress disorder qualifies as a compensable psychologi cal injury by accident. Specifically, employer contends that the sexual assault su ffered by claimant does not consti tute a precipitating event that is- 6 - so catastrophic, dramatic, or frightening as to sh ock the conscience because occurrences of assault, even sexual assault, are an anticipated and recurring part of claimant’s employment. In order to qualify as a compensable injury by accident under the Virginia’s Workers’ Compensation Act, a purely psycho logical injury, such as delaye d post-traumatic stress disorder, must be causally related to a physi cal injury or to an obvious sudden shock or fright arising in the course of employment. Anthony , 36 Va. App. at 103, 548 S.E.2d at 276; Owens v. Va. Dep’t of Transport. , 30 Va. App. 85, 88, 515 S.E.2d 348, 349 ( 1999); Daniel Constr. Co. v. Tolley , 24 Va. App. 70, 77, 480 S.E.2d 145, 148 (1997); Chesterfield County v. Dunn , 9 Va. App. 475, 477, 389 S.E.2d 180, 182 (1990). It is undisputed that the June 30, 2002 sexua l assault arose in the course of claimant’s employment. Employer asserts on a ppeal that “[i]t is the very nature of [claimant’s] employment to interact with patients, including sex offenders, every day” and that assaults, including sexual assaults, are “expected an d recurring” in claimant’s place of employment due to the character of its mission. Because “[a] physical a ssault [] constitute[s] an ‘acciden t’ within the me aning of the Act when it . . . was the result of an actual risk arising out of employment,” Butler v. Southern States Coop., Inc. , 270 Va. 459, 46 5, 620 S.E.2d 768, 77 2 (2005) (quoting Reamer v. National Service Industries , 237 Va. 466, 470, 377 S.E.2d 627, 629 (1989)), the sole is sue on appeal is whether the sexual assault on claimant was an “obvi ous sudden shock or fright,” Anthony , 36 Va. App. at 103, 548 S.E.2d at 276, such that claimant’s delayed post-traumatic stress disorder qualifies as a compensable psychological injury by accident under the Act. “[T]he types of precipitating events that give rise to purely ps ychological compensable injuries are consistently described as s hocking, frightening, trauma tic, catastrophic and unexpected.” Anthony , 36 Va. App. at 103-04, 548 S.E.2d at 276 (citing Burlington Mills Corp. v. Hagood , 177 Va. 204, 209-11, 13 S.E.2d 291, 293-94 (1941)). The record reflects that claimant- 7 - immediately reported the sexual assault to her superi ors. “A complaint made by a victim of sexual assault ‘has long been considered a[] . . . natural ex pression of the victim’s feelings in response to the offense.’” W ilson v. Commonwealth , 46 Va. App. 73, 83, 615 S.E.2d 500, 505 (2005) (quoting Lindsey v. Commonwealth , 22 Va. App. 11, 14, 467 S.E.2d 824, 826 (1996) ). Moreover, in her testimony before th e deputy commissioner, claimant explaine d that she was “up against the wall, and [] could do nothing [because she] was trapped in th[e] corner.” She went on to explain that she “just couldn’t believe it was happening.” Clai mant’s immediate report of the events to her supervisors following the sexual as sault, and her description of the incident during her testimony clearly established that the se xual assault was tr aumatic, frightenin g, and unexpected. Employer also argues that cl aimant’s psychological injury is not compensable because the precipitating event is indistinguishable from the pr ecipitating even t in Anthony . We disagree. In Anthony , a mother and grandmother push ed a Fairfax County social worker off a porch when the worker attempted to take emergency custody of two children at a day care center. We affirmed the commission’s denial of benefits, re asoning that the “inciden t did not rise to the level of the type of sudden shock or fright from whic h a compensable injury may arise” because claimant had admitted her work environment required contact with angry, confront ational parents. Anthony , 36 Va. App. at 105, 548 S. E.2d at 277. Like the claimant in Anthony , claimant acknowledged that her work environment included interaction with sexual o ffenders and other aggressive patients a nd that physical assaults by patients were not out of the ordinary. However, the assault in Anthony was not sexual in nature. Here, two known sex offenders touched clai mant’s breast and grabbed her genital area while laughing and making lewd comments. Claimant was cornered out of sight of th e other staff members working in the dining room. During the atta ck the two patients took claimant’s radio, rendering her unable to call for assistance and more vulner able to the patients’ attacks.- 8 - We conclude credible evid ence exists in the record to support the commission’s determination that the sexual as sault on claimant constituted a precipitating event that was “sufficiently dramatic and unexpected so as to shoc k the conscience.” We further conclude from the unrefuted medical evidence in th e record that claimant’s delaye d post-traumatic stress disorder was causally related to the sexu al assault she sustained in th e course of her employment. Accordingly, we affirm the comm ission’s award of benefits. Affirmed.