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Gann v. Vickers3/15/2005
owman's concern "early on" that Gann was experiencing secondary depression, and the court also noted that Bowman recommended a referral for counseling, which referral was apparently not authorized by Vickers. The court observed that Bowman's records were replete with references to Gann's depression and the necessity for mental health intervention, including letters strongly urging that care for Gann. The court also referenced the opinion of a psychologist who evaluated Gann that there was "'no sign of exaggeration or malingering.'"
The trial court addressed Vickers' argument that Gann's depression was not secondary to her accident and that other stressors contributed to Gann's condition, including her first husband's death in 1996, her son's difficulty in dealing with her husband's death, and the suicide of Gann's niece. The trial court noted the opinion of Dr. Terry Davis, a psychiatrist who examined Gann on behalf of Vickers, that Gann's depression prior to 1996 was not disabling. However, the trial court relied on the fact that by at least August 1994, Bowman recommended a referral for counseling. The trial court noted that Bowman described Gann in February 1995 as "'deeply depressed'" and "'obviously in need of a mental health provider.'" The court further noted that Bowman's notes in May 1995 indicated that Vickers had still not authorized Gann to see a psychologist and that Gann "would pay out of her own pocket." The trial court also noted Bowman's statement that "'we have been in a holding pattern for too long.'" Based on this evidence, the trial court concluded that Gann was clearly struggling with depression long before her first husband's unexpected death, that Bowman had identified the problem, and that Bowman found the problem significant enough that he would not recommend surgery until Gann had been evaluated and received counseling. The trial court found that Gann had been "permanently totally disabled since and after July 26, 2001, which entitle her to indemnity at the rate of $265.00 per week from July 26, 2001, through the date of trial and for so long in the future as she shall remain permanently totally disabled." The court found that Vickers was entitled to credit for indemnity paid.
Finally, the trial court ordered Vickers to pay certain medical expenses on behalf of Gann and future medical expenses "as may be reasonably necessary for her low back injury and any necessary mental health counseling." The court found Vickers was entitled to credit for medical expenses paid. The court also found that at the time Vickers terminated payment of indemnity and medical expenses, a reasonable controversy existed regarding Vickers' continued liability for Gann's injury.
Vickers filed an application for review on July 16, 2003, which application specified 14 different "errors in conclusions of law and findings of fact" by the trial court that were "distilled" by the review panel into four main areas of concern.
Following a review hearing, the review panel entered an order of affirmance on review on June 3, 2004. The review panel affirmed the judgment of the trial court in all respects and entered a detailed written opinion discussing the issues before it. We have incorporated the review panel's analysis of Vickers' consolidated assignments of error into our own discussion below. Vickers subsequently perfected its appeal to this court.
ASSIGNMENTS OF ERROR
In its brief, Vickers has set forth 16 separate assignments of error, which we consolidate and restate as follows: Vickers asserts that the compensation court erred in (1) finding that Gann is permanently and totally disabled; (2) relying on Bowman for conclusions relating to Gann's
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