                   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
                              - 2 -
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
                              - 3 -
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
                              - 4 -
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.



                               - 5 -
          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

                             - 6 -
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.




                               - 7 -
                                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
                              - 8 -
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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