                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, McCullough and Chafin
UNPUBLISHED


              Argued at Salem, Virginia


              ISLAND CREEK COAL COMPANY AND
               WELLS FARGO DISABILITY
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1120-13-3                                 JUDGE STEPHEN R. McCULLOUGH
                                                                                DECEMBER 17, 2013
              GEORGE ELBERT KING


                            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.


                     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.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        BACKGROUND

       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

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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.




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       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 ask the commission

to reconsider its decision based on this failure to discuss the report.

                                             ANALYSIS

       The commission’s legal determinations are not binding on appeal and will be reviewed de

novo. Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 257 (1999).

The factual findings of the commission, however, are conclusive and binding on appeal if

supported by credible evidence in the record. Southern Iron Works v. Wallace, 16 Va. App. 131,

134, 428 S.E.2d 32, 34 (1993).

       The employer’s first assignment of error is that the commission erred because it failed to

consider Dr. Kelley’s supplemental report of May 28, 2012. The employer’s argument is based

on the commission’s failure to mention this supplemental report in its detailed overview of the

medical records.

       We find no reversible error on this basis. First, as a conceptual matter, we will not

presume that the commission failed to thoroughly review the record before it. In a wide range of

contexts, we presume that judgments are correct and that public officials have discharged their

duties in accord with the law. See, e.g., Nelson v. Commonwealth, 281 Va. 212, 215, 707 S.E.2d

815, 816 (2011) (judgments of a trial court are presumed to be correct); Gilmore v. Landsidle,

252 Va. 388, 396, 478 S.E.2d 307, 312 (1996) (“In the absence of clear evidence to the contrary,

[courts] must presume that a public officer has properly discharged his official duties.”). The

commission’s failure to mention every scrap of medical evidence in a written opinion is not the

same as a failure by the commission to consider that evidence.

                                                 -4-
       Second, as a practical matter, the commission discussed in some detail the deputy

commissioner’s decision. The deputy commissioner specifically mentioned Dr. Kelley’s

supplemental report. Therefore, we find it hard to believe that the supplemental report escaped

the attention of the commission. The commission’s choice not to discuss the supplemental report

in its factual overview is not surprising, considering the employer did not mention the

supplemental report in either its five-page initial brief to the commission or its eleven-page

responsive brief. In an adversarial system, tribunals often discuss the arguments and evidence

that the parties signal are most important to the resolution of the case, and decline to address

matters that the parties signal are of less importance. Moreover, the supplemental report is just

that: a report that supplemented two other lengthy reports from Dr. Kelley.1 In short, we find no

error by the commission in not mentioning this supplemental report in its opinion.

       The employer cites McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265,

266 (1995), in support of its claim of error. McMurphy does not stand for the proposition that

the commission’s failure to mention a particular item of evidence means that the commission

failed to consider it. In McMurphy, the commission expressly held that it could not consider

medical histories to determine how an accident occurred. Id. at 58-59, 455 S.E.2d at 266. We

held that this conclusion was error and that “[b]y failing to consider these statements, the

commission ignored relevant evidence that supported the appellants’ position and, when coupled

with other evidence, this action may have affected the outcome of this case.” Id. at 60, 455




       1
          We also note that the employer did not ask the commission to reconsider based on its
failure to discuss this supplemental report. See Williams v. Gloucester Sheriff’s Dep’t, 266 Va.
409, 411-12, 587 S.E.2d 546, 548 (2003). The appellee does not fault the employer for failing to
seek reconsideration, however, and we therefore dispose of the issue on the merits.

                                                -5-
S.E.2d at 267. We reversed and remanded for the commission to consider all relevant evidence.

Id. In this case, the commission did not expressly refuse to consider relevant evidence.2

       The employer’s second assignment of error is that the commission improperly shifted the

burden of proof from the claimant and onto the employer. The employer argues that the

commission failed to “adequately” address whether the claimant established a causal connection

between the medications at issue and his injury. The employer notes that “[t]he record contains

substantial evidence of other injuries sustained by [the] claimant and of pre-existing

psychological problems, and the Commission fails to address why [the] claimant’s current

symptoms are related to the April 11, 1996 accident.” The employer also contends that the

commission’s decision is not “well-reasoned.”

       We have no difficulty in rejecting the claim that the commission improperly shifted the

burden of proof to the employer. The commission expressly stated in its opinion that “the

claimant has met his burden of proving that his psychiatric condition and need for the

medications at issue are causally related, and reasonable and necessary to treat his work

accident.” The commission found the opinions of the claimant’s treating physicians as well as

the opinion of his treating psychologist more persuasive than Dr. Kelley’s opinion on the

question of causation. Finally, with respect to the employer’s criticism of the level of detail and

of the quality of the reasoning employed by the commission in its opinion, we simply note that

our role as a reviewing court is not to grade the prolixity or quality of the commission’s

reasoning, but rather to determine whether its decision conforms to the law. It does.




       2
        We also have reviewed Southside Va. Training Ctr. v. Jones, No. 2898-98-2, 2000
Va. App. LEXIS 8 (Va. Ct. App. Jan. 11, 2000), cited by the employer as persuasive authority.
We find that case factually and legally distinguishable from the case at bar.
                                                -6-
                               CONCLUSION

We affirm the decision of the commission.

                                            Affirmed.




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