FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Nate D. Moore (Penn, Stuart & Eskridge, on brief), for appellants.
Jeffrey M. Summers (Law Office of Jeffrey M. Summers, PLLC, on brief), for appellee.
Present: Judges Petty, McCullough and Chafin Argued at Salem, Virginia
MEMORANDUM OPINION [*]
STEPHEN R. McCULLOUGH JUDGE
The employer, Island Creek Coal Company, challenges a decision of the Workers' Compensation Commission on two grounds. First, Island Creek argues that the commission erred in failing to consider a report by Dr. Paul Kelley dated May 28, 2012, in determining whether the claimant had established a causal relationship between the claimant's prescriptions for Remeron and Seroquel and his April 11, 1996 accident. Second, Island Creek argues that the commission erred as a matter of law by shifting the burden of proof to the employer to demonstrate that the claimant's symptoms were not causally related to the compensable accident. We conclude that the commission did not err and, accordingly, we affirm.
George Elbert King was employed as the Assistant Mine Foreman for Island Creek Coal Company. On April 11, 1996, while walking in a mine, he slipped and fell. He was awarded temporary total disability benefits and ongoing medical benefits.
An overview of the relevant evidence establishes that on August 6, 1996, Dr. Alain Desy, an orthopedic surgeon, found that the claimant suffered from a reactive depressive state following his work accident and referred him to a psychiatrist. The claimant was hospitalized in April of 1997 for depression and suicidal ideation. In July of 1998, Dr. Ashvin A. Patel, a psychiatrist, prescribed Remeron to treat the claimant's psychiatric condition. In January of 1999, Dr. Patel prescribed Seroquel and maintained the claimant's prescription for Remeron. The claimant has received ongoing mental health treatment.
Dr. Paul R. Kelley, a psychiatrist, conducted an independent medical examination at the employer's request. Dr. Kelley met with the claimant for a psychiatric medical examination on July 21, 2004, and conducted a review of claimant's medical records on June 21, 2011. He performed a second psychiatric evaluation on October 18, 2011. Dr. Kelley's conclusion in 2004 was that the claimant "in large part is malingering." In a letter dated August 24, 2004, Dr. Clinton H. Sutherland disagreed with Dr. Kelley that the claimant was malingering and opined that the claimant's "physical and psychologic [sic] problems are real." Likewise, Dr. R. Stephen Fulmer, a licensed clinical psychologist who treated the claimant for more than seven years, wrote a letter in August 2004 in which he expressed strong disagreement with Dr. Kelley's assessment. In his report of October 18, 2011, Dr. Kelley concluded that the claimant's April 11, 1996 injury did not cause or aggravate his psychiatric condition and that no psychiatric medications were needed in connection with his workplace injury. On February 7, 2012, Dr. Sutherland treated the claimant. Dr. Sutherland again expressed his disagreement with Dr. Kelley's conclusions that the claimant is a malingerer. Dr. Sutherland noted that Dr. Wood, a neurosurgeon who treated the claimant, was "outraged at this decision." On May 8, 2012, Dr. Buckner opined that the claimant should continue with his current medications, including Remeron and Seroquel, indicating that they were both medically necessary for the treatment of his work-related impairments. Dr. Fulmer, the claimant's psychotherapist, opined in May of 2012 that the claimant should continue taking psychiatric medications to treat his major depressive disorder. Dr. Fulmer also expressed his disagreement with Dr. Kelley.
In April of 2012, after the employer determined it would no longer pay for the claimant's psychiatric medications, King filed a claim with the commission asking it to order the employer to reinstate payment for those medications. On May 28, 2012, Dr. Kelley prepared a supplemental report. In this report, he stood by his original conclusions, made some corrections to his original report, took issue with the criticisms of his conclusions made by Drs. Buckner, Wood, Sutherland, and Fulmer and endeavored to rebut those criticisms, and leveled a number of charges at his critics.
The deputy commissioner found that the evidence was insufficient to establish that these medications were reasonable and necessary for the treatment of a condition causally related to the April 11, 1996 accident. However, the deputy commissioner ordered the employer to continue paying for the medications for up to an additional 60 days. The claimant appealed to the commission. The employer separately appealed the deputy commissioner's decision to require it to continue paying for the medications for up to an additional 60 days. The employer's briefing before the commission, while including an extensive discussion of Dr. Kelley's conclusions and credentials, made no specific mention of Dr. Kelley's supplemental report of May 28, 2012.
The commission reversed, finding that the medications are reasonable, necessary, and causally related to the claimant's work accident. The commission's opinion contains a detailed discussion of the medical evidence. Absent from the commission's detailed overview, however, is any mention of Dr. Kelley's May 28, 2012 report. The employer did not ...