School Board City of Norfolk v. Jordan Simon ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia
SCHOOL BOARD OF THE CITY OF NORFOLK
MEMORANDUM OPINION* BY
v. Record No. 1352-02-2 JUDGE LARRY G. ELDER
DECEMBER 31, 2002
SIMON JORDAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Joan E. Mahoney, Assistant City Attorney
(Bernard A. Pishko, City Attorney, on
briefs), for appellant.
Craig B. Davis (Emroch & Kilduff, on brief),
for appellee.
The School Board of the City of Norfolk (employer) appeals
from a decision of the Workers' Compensation Commission (the
commission) refusing to suspend an award of temporary total
disability benefits being paid to Simon Jordan (claimant). On
appeal, employer contends the appeal should be remanded for
additional findings because no credible evidence supports one of
the commission's essential findings of fact. It also contends
the evidence failed to prove claimant's ongoing disability is
caused by his compensable industrial injury. We agree with
employer's position that the commission erroneously concluded
the evidence of causation is unrefuted, and we remand to the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
commission to determine which of the competing medical opinions
regarding causation is more credible.
I.
BACKGROUND
"In an application for review of an award on the ground of
a change in condition, the burden is on the party alleging such
change to prove his allegation by a preponderance of the
evidence." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 438-39, 339 S.E.2d 570, 572 (1986). "Following established
principles, we review the evidence in the light most favorable
to the prevailing party." R. G. Moore Bldg. Corp. v. Mullins,
10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). If credible
evidence supports the commission's factual findings, we are
required to uphold those findings on review. See, e.g., Classic
Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383 S.E.2d 761, 764
(1989).
At the time of claimant's injury, he worked for employer as
a middle school teacher. On November 22, 2000, the last day of
school before Thanksgiving vacation, while claimant was trying
to prevent an altercation between two students, one of those
students retaliated by "slamm[ing] [claimant] into the lockers
in a rage." When school resumed on November 27, 2000, claimant
reported a resulting injury. He was diagnosed with a back
injury and "acute stress disorder." Employer accepted the
injury as compensable and began the voluntary payment of
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temporary total disability benefits. The physician who treated
claimant's physical complaints referred him to Dr. Robin
Nottingham, a psychologist, who examined claimant on November
30, 2000, and treated claimant regularly through August 2001.
Dr. Nottingham referred claimant to a psychiatrist, Patricia
King-Jones. Dr. Nottingham treated claimant in tandem with
Dr. King-Jones and wrote on April 2, 2001, that she "deferred
[her] return to work decision [regarding claimant] to
[Dr. King-Jones]."
When Dr. King-Jones first saw claimant on January 10, 2001,
she noted that claimant's November 22, 2000 assault was the
third incident of this nature claimant had experienced.
Claimant reported the first incident had occurred in January
2000 and the second incident about six months later.
Dr. King-Jones noted his symptoms included "fatigue, sadness,
insomnia, decreased appetite, poor concentration, nightmares,
flashbacks and intense fear and anxiety." Claimant was
concerned that the student was part of a gang and that he might
be attacked or killed. Dr. King-Jones noted his symptoms were
"consistent with post-traumatic stress disorder [(PTSD)] and
secondary depression." Dr. King-Jones noted that claimant was
taking antidepressant medication, and she opined that claimant
was unable to work due to his symptoms.
On March 5, 2001, Dr. King-Jones recommended that claimant
"not return to work until he has worked through his anger and
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frustration." During the next several months, she reported
claimant was "making progress" but exhibited ongoing depression,
anxiety, anger and hypervigilance. On April 26, 2001,
Dr. Nottingham said claimant reported believing "they're 'out to
get' him" and that he felt "it's not just paranoia." Claimant
said "he doesn't want to work in an environment that wants to do
him in & he [would] possib[ly] 'lose it' & end up in jail.
Cont. to say that if returned to work he would get a gun permit
& take gun to work." On June 21, 2001, Dr. Nottingham referred
claimant to an anger management group.
On August 3, 2001, Dr. King-Jones noted that claimant
has had a fair response to treatment but has
continued to have issues related to anger
regarding the altercation at Norfolk Public
Schools. [Claimant's] degree of unresolved
anger precludes returning him to his
previous working environment. I cannot
confirm with any degree of certainty that he
will be able to contain his expression of
anger. Returning him to the environment of
his attack may jeopardize the safety of
others as well as [claimant].
During the spring of 2001, employer sent claimant to Paul
Mansheim, a psychiatrist, for an independent medical
examination. Dr. Mansheim conducted a one-hour interview with
claimant on May 22, 2001, and reviewed Dr. King-Jones' treatment
records for the period from November 30, 2000, to April 25,
2001. Dr. Mansheim also reviewed legal documents indicating
claimant's belief that the principal of his school had subjected
him to racially discriminatory treatment during the months
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preceding the November 22, 2000 assault by the student. Those
documents apparently also showed that claimant made formal
allegations that some of the school's employees had improperly
revealed information about SOL testing in advance of
administration of the tests.
In summarizing claimant's medical history as culled from
Dr. King-Jones' office notes, Dr. Mansheim noted, inter alia,
claimant's ongoing reports and diagnoses of anger and
depression. During Dr. Mansheim's clinical interview with
claimant, claimant made a comment which Dr. Mansheim interpreted
as a threat. Dr. Mansheim asked claimant to "be calmer in
expressing himself," and claimant "apologized and was calmer."
Claimant reported during the clinical interview that he
experienced ongoing depression and tearfulness.
Dr. Mansheim reviewed the criteria necessary to make a
diagnosis of post-traumatic stress disorder. He concluded that
claimant's exhibited symptoms did not support a PTSD diagnosis
and that claimant exaggerated his symptoms. Dr. Mansheim wrote
as follows:
In my opinion, there is no evidence that
[claimant] is suffering from a psychiatric
disorder which prevents him from doing
activities, including work, that he wants to
do. In my opinion, it is most probable that
[claimant's] presentation is better
accounted for by symptom magnification or
even outright malingering.
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Conclusion
In a May 22, 2001, letter, [employer] asked
that I evaluate [claimant] in order to
determine whether or not I agree that
[claimant] suffers from a disabling
"post-traumatic stress" after being pushed
into a locker by a student. In my opinion,
there is in fact no psychiatric evidence
that [claimant] has a psychiatric disorder,
as a result of a work-related situation,
which prevents him from being able to do
anything that he wants to do, including
work.
Dr. King-Jones subsequently reviewed Dr. Mansheim's opinion
letter and prepared her own letter detailing how claimant meets
the criteria for a PTSD diagnosis. She noted it was
inappropriate to assume that claimant's poor response to
treatment "is motivated by secondary gain unless there are clear
indicators to support this assumption. In [claimant's] case
this simply cannot be supported by fact." She noted
Dr. Mansheim's report was flawed because it "[did] not even
address [claimant's] fear, avoidance, exposure to cues of the
event or his present engagement in previously enjoyed
activities," all of which she opined were "pertinent issues to a
complete evaluation."
Based on Dr. Mansheim's report, employer alleged that
claimant's ongoing disability was unrelated to his industrial
injury and sought termination of the outstanding award.
On September 28, 2001, based on a review of the record, the
deputy commissioner issued an opinion finding that claimant was
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not suffering from PTSD and that any disorder from which he was
suffering had not been proved to be causally related to the
"locker incident."
After issuance of the deputy commissioner's decision,
claimant requested review by the commission and also submitted
additional medical records for treatment he received from
November 5 to 14, 2001. Employer objected to the commission's
considering the documents in claimant's appeal or including the
documents in the record.
By opinion issued April 29, 2002, the commission reversed
the deputy's decision terminating the outstanding award. It
noted that claimant's PTSD diagnosis was controversial but
observed that,
notwithstanding the PTSD controversy,
Dr. Nottingham and Dr. King-Jones
consistently report psychiatric symptoms
experienced by the claimant that relate back
to the November 2000 assault.
Dr. Mansheim's report fails to include
discussion regarding the claimant's
depression or anger. Thus, Dr. King-Jones'
diagnosis and the opinions with regard to
causation of these symptoms are unrefuted.
On these particular facts, the Deputy
Commissioner's Opinion is REVERSED.
The commission did not rule on employer's request to exclude the
late filed medical records and did not indicate whether it
considered those records in reaching its decision.
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II.
ANALYSIS
We hold the commission's statement that Dr. Mansheim's
report fails to refute claimant's PTSD diagnosis and ongoing
disability solely because it "fails to include discussion
regarding the claimant's depression or anger" is erroneous, and
we remand for additional findings. As employer emphasizes,
Dr. Mansheim summarized claimant's recent medical history and
noted claimant's ongoing depression and anger as reported on
multiple occasions in the medical records Dr. Mansheim reviewed.
Claimant also exhibited his ongoing anger during Dr. Mansheim's
clinical interview with claimant when claimant made a remark
which Dr. Mansheim interpreted as a threat. Dr. Mansheim
recounted this incident in his opinion letter and also noted
claimant's reports, made directly to Dr. Mansheim, of ongoing
depression and tearfulness.
Although Dr. Mansheim did not specifically mention
claimant's anger and depression in concluding that claimant had
no ongoing psychiatric disorder caused by his industrial injury
which prevented him from working, this failure alone does not
support the commission's conclusion that "Dr. King-Jones'
diagnosis and the opinions with regard to causation of
[claimant's ongoing anger and depression] are unrefuted." As
detailed above, Dr. Mansheim's opinion letter includes multiple
references to claimant's depression and anger as contained in
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Dr. King-Jones' medical records, making clear Dr. Mansheim was
aware of Dr. King-Jones' opinion that claimant suffered from
these conditions and that he considered these conditions in
reaching his conclusions on causation. Thus, although the
commission remains free to conclude on remand that
Dr. Mansheim's opinion was unpersuasive because he did not
discuss the impact of claimant's alleged ongoing anger and
depression on his conclusion that claimant had no disabling
psychiatric condition, Dr. Mansheim's opinion did not fail,
as a matter of law, to refute Dr. King-Jones' opinion.
For these reasons, we reverse and remand for additional
findings of fact consistent with this opinion.
Reversed and remanded.
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