Cleve Edward Curry v. Consol Engery, Inc. ( 2008 )


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  •                                COURT OF APPEALS OF VIRGINIA
    Present: Judges Frank, Humphreys and Haley
    Argued by teleconference
    CLEVE EDWARD CURRY
    MEMORANDUM OPINION * BY
    v.     Record No. 1747-07-3                                    JUDGE ROBERT P. FRANK
    MARCH 25, 2008
    CONSOL ENERGY, INC.
    FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
    Karel Brown Ryan (Ryan Law Firm, PC, on brief), for appellant.
    John R. Sigmond (Penn, Stuart & Eskridge, on brief), for appellee.
    Cleve Curry, appellant/claimant, appeals a decision of the Workers’ Compensation
    Commission denying appellant’s claim for benefits. Appellant contends the commission erred
    in: 1) finding claimant did not suffer a compensable injury; 2) rejecting the opinion of
    claimant’s treating physician in favor of the independent medical examiner; and 3) rejecting the
    opinion of claimant’s treating psychologist. For the reasons stated, we affirm the commission.
    ANALYSIS
    On appeal from a decision of the Workers’ Compensation Commission, the evidence and
    all reasonable inferences that may be drawn from that evidence are viewed in the light most
    favorable to the party prevailing below. Clinchfield Coal Co. v. Reed, 
    40 Va. App. 69
    , 72, 
    577 S.E.2d 538
    , 539 (2003); Tomes v. James City Fire, 
    39 Va. App. 424
    , 429, 
    573 S.E.2d 312
    , 315
    (2002). Also, “[w]e do not judge the credibility of witnesses or weigh the evidence on appeal.”
    Celanese Fibers Co. v. Johnson, 
    229 Va. 117
    , 121, 
    326 S.E.2d 687
    , 690 (1985). Rather, we are
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    bound by the commission’s findings of fact as long as “there was credible evidence presented
    such that a reasonable mind could conclude that the fact in issue was proved,” Westmoreland
    Coal Co. v. Campbell, 
    7 Va. App. 217
    , 222, 
    372 S.E.2d 411
    , 415 (1988) (emphasis in original),
    even if there is evidence in the record that would support a contrary finding, Morris v. Badger
    Powhatan/Figgie Int’l, Inc., 
    3 Va. App. 276
    , 279, 
    348 S.E.2d 876
    , 877 (1986).
    The first question we must consider is whether the evidence supports the commission’s
    finding that claimant does not suffer from a compensable work injury, namely, post traumatic
    stress disorder (PTSD).
    Claimant was employed by Consol Energy, Inc. as a maintenance foreman in the
    Buchanan Mine during the fall of 2004. On September 26, another Consol employee was fatally
    injured when he became caught in the conveyor belt line of a rock crusher tailpiece. Claimant
    did not witness the accident, but was told of the incident and arrived at the scene shortly after the
    accident occurred. Although the claimant did not directly supervise the decedent, claimant knew
    him through working at the mine and considered the decedent a friend. Claimant volunteered to
    assist with removing decedent’s remains from the machine.
    The claimant testified that approximately a month after the fatality he made an
    appointment to see his family physician, Dr. Kenneth W. Saul, for back pain. Dr. Saul
    eventually referred claimant to Dr. Kent Colburn at Tri-County Mental Health. On January 20,
    2005, Dr. Colburn diagnosed claimant with acute PTSD, “major depressive disorder, single
    episode, severe without psychotic features,” and chronic back pain. Dr. Colburn’s notes from
    that date indicate that claimant “witnessed a tragic accident at work that resulted in the death of
    his friend/coworker.” Dr. Colburn monitored claimant’s medication and referred him to Shirley
    Verhey, Licensed Professional Clinical Counselor, for weekly therapy.
    -2-
    The claimant began treating with Verhey on November 22, and she diagnosed claimant
    with PTSD. On December 1, Verhey wrote that the claimant was experiencing severe anxiety
    and panic attacks, depression, flashbacks, nightmares, and loss of self-confidence.
    At employer’s request, Dr. Paul R. Kelley performed an independent medical
    examination (IME) on claimant in March 2005. After reviewing Dr. Saul’s and Dr. Colburn’s
    records, Dr. Kelley concluded that claimant did not suffer from PTSD or any other psychiatric
    disorder. Dr. Kelley further opined that claimant was malingering and exaggerating. In support
    of his findings, Dr. Kelley indicated that claimant had endorsed seven out of eight “L scenarios”
    that had been presented to him. Dr. Kelley explained that an “L scenario” is a description of a
    symptom provided to the examinee that is either rarely or never experienced by genuine
    psychiatric patients. He pointed out that “endorsement of an experience that is virtually never
    encountered in psychiatric practice is consistent with malingering.” Dr. Kelley further noted that
    although claimant maintained he was depressed, claimant told several jokes and at times was
    laughing loudly during the examination.
    At the hearing, the claimant stated that his initial encounter with Dr. Kelley was hostile.
    He testified that he arrived early at Dr. Kelley’s office, knocked on the door, and tried to ask
    whether he was in the right place. The claimant believed that in response, Dr. Kelley mouthed a
    curse word. Dr. Kelley denied this occurred.
    On March 28, 2005, Dr. Colburn wrote a letter refuting Dr. Kelley’s IME report,
    incorporating by reference the diagnosis and treatment of claimant by Verhey.
    The commission found:
    Dr. Colburn’s diagnosis may be considered by the Commission;
    however, his opinion is flawed and not persuasive, because he
    incorrectly believed that the claimant witnessed the accident,
    incorrectly believed that he did not have a previous psychiatric
    condition, and did not know that he had received treatment for
    chronic pain since a 1994 motor vehicle accident and a 1998
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    mining accident. Dr. Kelley’s report presented the only complete
    picture of the claimant’s past and present status. Dr. Kelley
    reviewed all the medical documentation, as well as the claimant’s
    deposition, and took a history from him at the time of the
    evaluation. He conducted the evaluation, and included a test for
    malingering and credibility. Dr. Kelley clearly explained the
    mechanics of the test and the reasons the claimant failed; thus, we
    find his opinion to be the most persuasive.
    Appellant argues that the commission erred in rejecting the medical opinion of his
    treating physician and in accepting the report of the IME doctor who was prejudiced against
    claimant and examined claimant only once.
    In evaluating medical evidence, the commission is entitled to give great weight to the
    treating physician’s opinion. United Airlines, Inc. v. Sabol, 
    47 Va. App. 495
    , 501-02, 
    624 S.E.2d 692
    , 695 (2006). However, “[i]f there is any doubt in the treating physician’s opinion, or
    if there is contrary expert medical opinion, ‘the commission is free to adopt that which is most
    consistent with reason and justice.’” 
    Id. (quoting Williams v.
    Fuqua, 
    199 Va. 709
    , 714, 
    101 S.E.2d 562
    , 567 (1958)). “Whenever a physician’s diagnosis flows from an assumption that rests
    upon a faulty premise, such as misinformation provided by a claimant, the commission may
    refuse, and often will be required to refuse, to attribute any weight to that opinion.” Sneed v.
    Morengo, Inc., 
    19 Va. App. 199
    , 205, 
    450 S.E.2d 167
    , 171 (1994); see also Clinchfield Coal Co.
    v. Bowman, 
    229 Va. 249
    , 252, 
    329 S.E.2d 15
    , 16 (1985).
    The commission did not err in discounting the opinion of Dr. Colburn, who erroneously
    based his opinion on the fact that claimant witnessed the accident. Additionally, Dr. Colburn
    was not aware of claimant’s complete medical history, including a previous suicide attempt and
    complaints of depression on several occasions prior to the mine incident. On the other hand, the
    commission offered several reasons for accepting Dr. Kelly’s IME over the reports of
    Dr. Colburn and Ms. Verhey, specifically finding that Dr. Kelley presented the only “complete
    picture of the claimant’s past and present status.”
    -4-
    Although the commission was presented with conflicting medical opinions, “the
    commission [is] free to decide which evidence was more credible and should be weighed more
    heavily.” Thompson v. Brenco, Inc., 
    38 Va. App. 617
    , 624, 
    567 S.E.2d 580
    , 584 (2002). Here,
    the commission resolved the conflicting medical evidence in favor of the employer and
    concluded that Dr. Kelley’s IME report was more persuasive. Dr. Kelley opined that claimant
    was a malingerer who exaggerated his symptoms and called his credibility as a patient into
    question. He based his findings on a four-hour examination of claimant and a complete review
    of claimant’s records from Drs. Saul and Colburn. Based on this, the commission found that
    claimant does not suffer from PTDS as a result of the incident in the mine. We will not disturb
    that finding on appeal.
    Claimant also contends that Dr. Kelley’s evaluation is tainted due to an initial unpleasant
    encounter. “The credibility of the witnesses and the weight accorded the evidence are matters
    solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.”
    Sandoval v. Commonwealth, 
    20 Va. App. 133
    , 138, 
    455 S.E.2d 730
    , 732 (1995). The
    commission was free to believe Dr. Kelley and to conclude that the initial encounter between the
    two gentlemen was not hostile and did not negatively impact Dr. Kelley’s report.
    Appellant next argues that the commission improperly rejected the findings of Shirley
    Verhey because she was not an expert witness. The commission concluded, “Verhey’s opinion
    on causation cannot be considered, because she is a licensed clinical counselor with a master’s
    degree in education in community counseling, does not hold a Ph.D. in clinical psychology, and
    only was offered as a fact witness, not an expert.” We note that by letter dated March 29, 2005,
    Dr. Colburn “specifically incorporated” Verhey’s diagnosis and treatment of claimant’s PTSD
    into his March 28, 2005 opinion letter refuting Dr. Kelley’s IME. Regardless of whether the
    commission accepted Verhey as a fact witness or an expert witness, the commission disregarded
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    her diagnosis when it rejected Dr. Colburn’s opinion, which specifically incorporated her
    conclusions into his report. Thus, we find no merit to appellant’s argument that the commission
    erroneously refused to consider Verhey’s diagnosis of PTSD.
    Upon our review, we cannot say the commission erred in accepting Dr. Kelley’s opinion
    that claimant did not suffer from PTSD. The commission made factual findings based upon the
    medical reports, and the commission drew reasonable inferences from that evidence. We,
    therefore, affirm the decision. 1
    Affirmed.
    1
    Appellant also argues that pursuant to Hercules, Inc. v. Gunther, 
    13 Va. App. 357
    , 
    412 S.E.2d 185
    (1991), claimant’s post traumatic stress disorder is compensable as an injury by
    accident caused by an obvious sudden shock or fright arising out of employment. The
    commission ruled, “the accident was over when the claimant arrived at the scene. [Claimant]
    was not part of the sudden, catastrophic event, and he knew that the accident was horrific before
    he arrived at the scene.” Because we find credible evidence in the record to support the
    commission’s alternate finding that claimant does not suffer from PTSD, the issue of causation is
    moot and we do not address it. See Yap v. Commonwealth, 
    49 Va. App. 622
    , 630, 
    643 S.E.2d 523
    , 526 (2007) (“Keeping in mind well-settled principles of judicial review, we decline . . . to
    offer an advisory opinion on . . . ‘hypothetical situations.’” (quoting Boyd v. County of Henrico,
    
    42 Va. App. 495
    , 520, 
    592 S.E.2d 768
    , 780 (2004) (en banc))).
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