                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                July 9, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CHRISTOPHER E. BURGESS,                                                       OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1051 (BOR Appeal No. 2049390)
                   (Claim No. 2009075422)

EASTERN ASSOCIATED COAL, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Christopher E. Burgess, by Reginald D. Henry, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Eastern Associated
Coal, LLC, by Henry C. Bowen, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 22, 2014, in
which the Board affirmed an April 22, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 14,
2011, decision granting Mr. Burgess a 2% permanent partial disability award related to his
psychiatric impairment. The Court has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Burgess worked as a coal miner for Eastern Associated Coal, LLC. On January 15,
2009, Mr. Burgess sustained injuries to his left leg and knee when a rock fall pinned him against
a roof bolt machine. Mr. Burgess applied for workers’ compensation benefits based on the
injury, and his claim was held compensable for a contusion and a crush injury of the left knee.
Following over a year of treatment, which included arthroscopic surgery and physical therapy,
Marsha Bailey, M.D., evaluated Mr. Burgess and determined that he had reached his maximum
degree of medical improvement. Dr. Bailey determined that Mr. Burgess had 14% whole person
                                                1
impairment related to his left knee injury. The claims administrator granted Mr. Burgess a 14%
permanent partial disability award based on Dr. Bailey’s evaluation.

         Mr. Burgess primarily received treatment during this time from Syed A. Zahir, M.D.
Following the decision granting Mr. Burgess a permanent partial disability award, Dr. Zahir
noted that he appeared to be under a great deal of stress related to the trauma and disability of his
knee. Dr. Zahir believed Mr. Burgess was severely depressed. Mr. Burgess was then treated by a
psychiatrist, Safiullah Syed, M.D., who found that he had developed depression and social
anxiety related to his left leg pain. Mr. Burgess also received psychological counseling from
Crystal Whittington, M.A. Mr. Burgess reported to Ms. Whittington that he had grown more
irritable because of his constant pain. He also reported that his wife had left him because of his
anger problems. Edward Jones, M.A., then performed psychological testing on Mr. Burgess. He
found that Mr. Burgess reported symptoms of severe depression and anxiety. He also found that
Mr. Burgess had social phobia. Based on his testing, Mr. Jones also found that Mr. Burgess had a
Global Assessment of Functioning (GAF) score of 50. Mark Casdorph, M.D., performed a
psychiatric evaluation and found that he had developed depression and anxiety because of the
compensable injury. Dr. Casdorph, however, found that the psychological testing revealed that
Mr. Burgess feigned memory loss and endorsed a variety of psychiatric symptoms which were in
excess of those normally seen. Dr. Casdorph found that Mr. Burgess had 10% psychiatric
impairment, but he believed that his impairment was attributable to compensable and non­
compensable factors. Dr. Casdorph apportioned 2% impairment to the compensable injury and
8% impairment to non-compensable factors. Following this evaluation, the claims administrator
added major depressive disorder as a compensable condition of the claim.

        On December 14, 2011, the claims administrator granted Mr. Burgess a 2% permanent
partial disability award for his psychiatric conditions. Phillip Robertson, M.D., also performed a
psychiatric evaluation. He noted that Mr. Burgess did not have any psychiatric symptoms prior to
the compensable injury. He believed that Mr. Burgess developed emotional problems because of
the persistent pain associated with his compensable injury. Dr. Robertson also noted Mr.
Burgess’s struggles with self-esteem and self-worth because of the compensable injury. Dr.
Robertson noted some evidence of symptom magnification but found that his complaints were
compatible with his psychiatric problems. Dr. Robertson found that Mr. Burgess had a GAF
score of 54. Based on this score, Dr. Robertson found that Mr. Burgess had 10% psychiatric
impairment. Dr. Robertson apportioned 8% impairment to the compensable injury and 2%
impairment to non-compensable factors. Bobby Miller, M.D., also performed a psychiatric
evaluation. His evaluation was based on the psychological evaluation of Richard Reeser, M.A.
Dr. Miller found, based on Mr. Reeser’s evaluation, that Mr. Burgess endorsed a high frequency
of symptoms that are atypical in patients with genuine psychiatric disorders. Dr. Miller believed
this raised the suspicion of malingering and symptom magnification. Dr. Miller found that Mr.
Burgess had 2% psychiatric impairment related to the compensable injury. On April 22, 2014,
the Office of Judges affirmed the claims administrator’s December 14, 2011, decision. The
Board of Review affirmed the Office of Judges’ Order on September 22, 2014, leading Mr.
Burgess to appeal.


                                                 2
       The Office of Judges concluded that Mr. Burgess did not demonstrate that he was entitled
to more than a 2% permanent partial disability award related to his psychiatric impairment. The
Office of Judges based this determination on the evaluation of Dr. Miller. The Office of Judges
found that Dr. Miller’s impairment recommendation was the most reliable assessment of Mr.
Burgess’s psychiatric condition because his evaluation was based on psychological testing. The
Office of Judges also found that Dr. Miller properly considered evidence of Mr. Burgess’s
symptom magnification and factored this evidence into his impairment recommendation. The
Office of Judges also considered the impairment recommendations of Dr. Casdorph and Dr.
Robertson. The Office of Judges did not rely on Dr. Casdorph’s opinion because he apportioned
a large percentage of Mr. Burgess’s impairment to non-compensable factors even though his
medical history did not include any complaints of psychiatric problems prior to the date of the
compensable injury. The Office of Judges also did not rely on the impairment rating of Dr.
Robertson. The Office of Judges found that his evaluation did not comply with the requirements
of West Virginia Code of State Rules § 85-20-12.8(c) (2006) because it was not performed in
conjunction with a psychological evaluation. The Office of Judges also found that the accuracy
and reliability of Dr. Robertson’s assessment was called into question because he did not
adequately consider evidence that Mr. Burgess was magnifying his symptoms.

       The Board of Review adopted the findings of the Office of Judges and affirmed its Order.
The Board of Review, however, disagreed with the Office of Judges’ conclusion that Dr.
Robertson’s evaluation did not comply with the requirements of West Virginia Code of State
Rules § 85-20-12.8(c) because Dr. Robertson reviewed the psychological testing performed by
Mr. Jones. The Board of Review, nevertheless, concluded that Mr. Burgess was entitled to a 2%
permanent partial disability award related to his psychiatric impairment.

       On appeal, Mr. Burgess asserts that he is entitled to an 8% permanent partial disability
award related to his psychiatric impairment. Mr. Burgess argues that Dr. Robertson’s evaluation
complied with the requirements of West Virginia Code of State Rules § 85-20-12.8(c) and that
his impairment recommendation should be adopted by this Court.

        We agree with the conclusions of the Board of Review. Mr. Burgess has not
demonstrated that he is entitled to any greater than a 2% permanent partial disability award
related to his psychiatric impairment. The psychiatric evaluation of Dr. Miller demonstrates that
Mr. Burgess had 2% whole person impairment related to his psychiatric conditions. Dr. Miller’s
evaluation is consistent with the guidelines for rating psychiatric impairment under West
Virginia Code of State Rules § 85-20 Exhibit B (2006). The Office of Judges was within its
discretion in adopting his opinion. The record does not support the Office of Judges’ conclusion
that Dr. Robertson failed to comply with the requirements of West Virginia Code of State Rules
§ 85-20-12.8(c). Because the regulation applies to the initial psychiatric evaluation and not every
subsequent evaluation, Dr. Robertson was not required to comply with its requirements.
Nevertheless, the Office of Judges provided a sufficient additional reason for disregarding Dr.
Robertson’s impairment recommendation. Dr. Robertson’s evaluation did not take adequate
account of the ample evidence of symptoms magnification in the record, and the Office of Judges
was justified in disregarding his opinion for this reason. Therefore, the Office of Judges’
misapplication of West Virginia Code of State Rules § 85-20-12.8(c) was not a prejudicial error.
                                                3
        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.

                                                                                        Affirmed.

ISSUED: July 9, 2015

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                                4
