664 S.E.2d 735
2. “Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.” Syllabus Point 1, Israel by Israel v. West Virginia Secondary Sch. Activities Comm'n, 182 W.Va. 454, 388 S.E.2d 480 (1989).
3. “In order for a claim to be held compensable under the Workmen's Compensation Act, three elements must coexist: (1) a personal injury (2) received in the course of employment and (3) resulting from that employment.” Syllabus Point 1, Barnett v. State Workmen's Compensation Comm'r, 153 W.Va. 796, 172 S.E.2d 698 (1970).
4. “'A claimant in a workmen's compensation case must bear the burden of proving his claim but in doing so it is not necessary to prove to the exclusion of all else the causal connection between the injury and the employment.' Syllabus Point 2, Sowder v. State Workmen's Compensation Commissioner, 155 W.Va. 889, 189 S.E.2d 674 (1972).” Syllabus Point 1, Myers v. State Workmen's Compensation Comm'r, 160 W.Va. 766, 239 S.E.2d 124 (1977).
Per Curiam:
Llewellyn M. Wilkinson, the appellant and claimant below (hereinafter
“claimant”), appeals a final order of the Workers' Compensation Board of Review
(hereinafter “BOR”) dated August 21, 2006. In that order, the BOR affirmed a decision of
the Workers' Compensation Office of Judges (hereinafter “OOJ”) denying the
compensability of the claimant's psychiatric condition. In this appeal, the claimant contends
that she has major depression and a pain disorder as a result of the injury she suffered on
April 11, 1997, and therefore, her psychiatric condition should be held compensable.
This Court has before it the petition for appeal, the designated record, and the
briefs and arguments of counsel. For the reasons set forth below, the decision of the BOR
is reversed.
The claimant was referred to Dr. Ralph Smith, a psychiatrist, by the
Commission for evaluation. In a report dated May 5, 2005, Dr. Smith opined that the
claimant did not have a major depressive disorder. He did advise, however, that the claimant
had a pain disorder that could be attributable to her April 11, 1997, injury.
By order dated September 7, 2005, the OOJ affirmed the Commission's order
of September 20, 2004, denying the compensability of the claimant's psychiatric condition.
The OOJ's order stated, in pertinent part:
The claimant has failed to submit evidence to establish
that her psychiatric condition of a major depressive disorder and
a pain disorder are causally connected to the claimant's injury of
April 11, 1997. The evidence of record was subsequent to the
claimant's open heart surgery. The records of Dr. Caraway and
Dr. Webb clearly indicate that the claimant developed a
depressive disorder and a pain disorder; however, neither doctor
discussed this matter in relationship to the claimant's open heart
surgery in 2003. The OM[M] review indicated that depression
is a common symptom of open heart surgery. There is no
evidence in this claim to contradict that finding. Significant
weight is placed upon the OM[M] review of the evidence, as
well as the report of Dr. Smith who indicated that the claimant
did not have a major depressive diagnosis. Although Dr. Smith
indicated that there was an affective disorder due to the
claimant's pain there was no discussion in the claimant's history
that she had open heart surgery. Therefore, the claimant has
failed to eliminate an independent intervening cause in her
development of her alleged depressive disorder and pain
disorder. Without consideration of this Dr. Smith would have
no basis to conclude whether or not the claimant's pain disorder
was attributable to her injury. No weight is placed upon the
findings of Dr. Webb or Dr. Caraway and their conclusions that
the claimant has a major depressive disorder, for this is clearly
disputed in the report of Dr. Smith, who indicated that there is
no major depressive disorder present in the claimant. Therefore,
it is determined that the claimant has supplied no evidence to
establish a causal relationship between her April 11, 1997,
injury and her psychiatric sequela. If anything, the evidence of
record establishes that the claimant developed her depressive
disorder after her open heart surgery, which would clearly be an
independent intervening cause.
The claimant appealed the OOJ's decision to the BOR. By order entered August 21, 2005,
the BOR adopted the findings and conclusions of the OOJ and affirmed its decision. This
appeal followed.
(b) In reviewing a decision of the board of review, the
supreme court of appeals shall consider the record provided by
the board and give deference to the board's findings, reasoning
and conclusions, in accordance with subsections (c) and (d) of
this section.
(c) If the decision of the board represents an affirmation
of a prior ruling by both the commission and the office of judges
that was entered on the same issue in the same claim, the
decision of the board may be reversed or modified by the
supreme court of appeals only if the decision is in clear violation
of constitutional or statutory provision, is clearly the result of
erroneous conclusions of law, or is based upon the board's
material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not
conduct a de novo re-weighing of the evidentiary record. If the
court reverses or modifies a decision of the board pursuant to
this subsection, it shall state with specificity the basis for the
reversal or modification and the manner in which the decision
of the board clearly violated constitutional or statutory
provisions, resulted from erroneous conclusions of law, or was
based upon the board's material misstatement or
mischaracterization of particular components of the evidentiary
record.
(d) If the decision of the board effectively represents a
reversal of a prior ruling of either the commission or the office
of judges that was entered on the same issue in the same claim,
the decision of the board may be reversed or modified by the
supreme court of appeals only if the decision is in clear violation
of constitutional or statutory provisions, is clearly the result of
erroneous conclusions of law, or is so clearly wrong based upon
the evidentiary record that even when all inferences are resolved
in favor of the board's findings, reasoning and conclusions,
there is insufficient support to sustain the decision. The court
may not conduct a de novo re-weighing of the evidentiary
record. If the court reverses or modifies a decision of the board
pursuant to this subsection, it shall state with specificity the
basis for the reversal or modification and the manner in which
the decision of the board clearly violated constitutional or
statutory provisions, resulted from erroneous conclusions of law,
or was so clearly wrong based upon the evidentiary record that
even when all inferences are resolved in favor of the board's
findings, reasoning and conclusions, there is insufficient support
to sustain the decision.
In this case, our review is guided by subsection (c) of W.Va. Code § 23-5-15 because the
BOR affirmed a prior ruling of the Commission and the OOJ. Accordingly, with this
standard in mind, we now consider the issue presented in this case.
A case is not rendered moot even though a party to the
litigation has had a change in status such that he no longer has
a legally cognizable interest in the litigation or the issues have
lost their adversarial vitality, if such issues are capable of
repetition and yet will evade review.
Syllabus Point 1, State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1984). We
have explained that,
Three factors to be considered in deciding whether to
address technically moot issues are as follows: first, the court
will determine whether sufficient collateral consequences will
result from determination of the questions presented so as to
justify relief; second, while technically moot in the immediate
context, questions of great public interest may nevertheless be
addressed for the future guidance of the bar and of the public;
and third, issues which may be repeatedly presented to the trial
court, yet escape review at the appellate level because of their
fleeting and determinate nature, may appropriately be decided.
Syllabus Point 1, Israel by Israel v. West Virginia Secondary Sch. Activities Comm'n, 182
W.Va. 454, 388 S.E.2d 480 (1989).
Recently, in State ex rel. Crist v. Cline, 219 W.Va. 202, 632 S.E.2d 358 (2006),
we addressed the question of when dependents' death benefits should terminate under this
State's Workers' Compensation laws even though the issue had been rendered technically
moot because of action taken by the Governor's office after a writ of mandamus had been
filed in this Court and a rule to show cause had been issued. We found the issue presented
in that case to be one of great public interest and also subject to repetition. The same is true
here. Accordingly, while technically moot, we will proceed to address the issue presented
in this case which is what evidence is necessary to establish that a psychiatric condition is
causally related to the compensable injury and, therefore, also a compensable component of
the claim.
We begin our analysis by first setting forth some basic principles of workers'
compensation law. In Syllabus Point 1 of Barnett v. State Workmen's Compensation
Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970), this Court held that, “In order for a
claim to be held compensable under the Workmen's Compensation Act, three elements must
coexist: (1) a personal injury (2) received in the course of employment and (3) resulting from
that employment.” Also, “this Court in the past has recognized that a psychiatric disability
arising out of a compensable physical injury may also be compensable.” Harper v. State
Workmen's Compensation Comm'r, 160 W.Va. 364, 366, 234 S.E.2d 779, 781 (1977). See
also Ward v. State Workmen's Compensation Comm'r, 154 W.Va. 454, 176 S.E.2d 592
(1970); Sisk v. State Workmen's Compensation Comm'r, 153 W.Va. 461, 170 S.E.2d 20
(1969). It is well-established that, “'A claimant in a workmen's compensation case must bear
the burden of proving his claim but in doing so it is not necessary to prove to the exclusion
of all else the causal connection between the injury and the employment.' Syllabus Point 2, Sowder v. State Workmen's Compensation Commissioner, 155 W.Va. 889, 189 S.E.2d 674
(1972).” Syllabus Point 1, Myers v. State Workmen's Compensation Comm'r, 160 W.Va.
766, 239 S.E.2d 124 (1977).
With regard to the manner in which evidence submitted in a workers'
compensation case is to be viewed, W.Va. Code § 23-4-1g(a) (2003) states that, “For all
awards made on or after the effective date of the amendment and reenactment of this section
during the year two thousand three, resolution of any issue raised in administering this
chapter shall be based on a weighing of all evidence pertaining to the issue and a finding that
a preponderance of the evidence supports the chosen manner of resolution.” The statute
further provides that,
The process of weighing evidence shall include, but not be
limited to, an assessment of the relevance, credibility,
materiality and reliability that the evidence possesses in the
context of the issue presented. Under no circumstances will an
issue be resolved by allowing certain evidence to be dispositive
simply because it is reliable and is most favorable to a party's
interests or position. If, after weighing all of the evidence
regarding an issue in which a claimant has an interest, there is
a finding that an equal amount of evidentiary weight exists
favoring conflicting matters for resolution, the resolution that is
most consistent with the claimant's position will be adopted.
Id.
Turning now to the specifics of this case, the record shows that the claimant
submitted several reports from Drs. Caraway and Webb, as well as their deposition
testimony, in support of her request to have her psychiatric condition held compensable. All
of this evidence indicated that she was suffering from major depression and a pain disorder
as a result of her 1997 compensable ankle injury. In particular, Dr. Webb's report of March
11, 2004, stated that the claimant was suffering from major depression secondary to chronic
pain from her work-related injury and a pain disorder also caused by her work-related injury.
On September 1, 2004, Dr. Webb filed a diagnosis update form advising that the claimant
had “severe depression with recent suicidal thoughts related to all the limitations and
complications of this injury.” He explained that claimant had several surgeries because of
her injury that had “left her body disfigured and in chronic pain.” During his deposition on
March 16, 2005, Dr. Webb testified that,
I think one of the reasons it took so long for the depression to
manifest was because we started with a person who had such a
strong constitution to start with. So, you know _ and a lot of
times people have, you know, wishful thinking that they can _
you know, this can't last forever, this is going to get better, the
surgery will help, medicine will help, and they continue to stay
in pain. It doesn't get any better. It becomes very demoralizing.
And I think that's what happened in her case.
Dr. Caraway testified at his deposition on March 7, 2005, that he documented
the claimant's depression in mid 2003 and began trying to get her treatment at that time.
When questioned about the length of time between the claimant's injury and the onset of her
depression, Dr. Caraway stated,
Well, first of all, depression goes hand-in-hand with
chronic pain and disability. It's actually abnormal to not
develop some degree of depression with prolonged dealing with
lack of functioning and chronic pain.
This is a woman who has been promised some
improvement of her pain over the years by various different
procedures, but much of this did not get realized, and I think
whenever this happened, it gradually made her depression worse
and worse, and up until 2002/2003, I think she had developed
some coping skills, but when it became clear to her that these
coping skills would ultimately _
Let me rephrase that. When it became clear to her that
her pain syndrome was ultimately not going to improve
significantly beyond what it had been and that she would need
to file for disability and not return to her previous occupation, I
believe that her depressive symptoms spiraled, and it was at that
time that I requested more specific and specialized help.
During her own deposition, the claimant testified that she began feeling depressed about a
year after her injury and that it gradually became worse as she realized that she was not going
to be able to return to work.
In contrast to the evidence submitted by the claimant, Dr. Smith, the
psychiatrist who examined her at the request of the Commission, reported on May 5, 2005,
that,
Ms. Wilkinson has an affective component to her chronic pain syndrome, which has been treated by Lexapro and outpatient psychological counseling. She has had only modest response to that. She had a strong somatization, which has interfered with the recovery from her illness. She has no major depression in my opinion. The affective component of her chronic pain syndrome is related to her compensable injury, in my opinion, through the chronic pain she experiences.
Having carefully reviewed the evidence in the record, we find that the
claimant's psychiatric condition should have been held compensable. The decision of the
OOJ, which was affirmed by the BOR, misstates and mischaracterizes particular components
of the evidentiary record, is clearly the result of an erroneous conclusion of law, and is in
clear violation of W.Va. Code § 23-4-1g(a). In that regard, the OOJ's decision first states
that there is no evidence in the record to contradict the OMM's finding that claimant's
depression resulted from her open heart surgery and not her 1997 compensable injury. This
is simply not true as the claimant submitted evidence clearly indicating that her depression
developed before her open heart surgery. As set forth above, the claimant's treating
physician, Dr. Caraway, testified that he documented the claimant's depression in mid 2003.
The record shows that the claimant did not have open heart surgery until August 2003. In
addition, the claimant testified that she actually began feeling depressed about a year after
her injury. Moreover, Dr. Smith, while ultimately concluding that the claimant did not have
major depression, reported that the claimant's symptoms of depression began four years ago
and that she had open heart surgery two years ago. In sum, there was substantial evidence
in the record that the claimant's depression existed prior to her open heart surgery.
The OOJ's decision also contains material errors with regard to the content of
Dr. Smith's report. In discounting Dr. Smith's conclusion that the claimant does in fact have
a pain disorder attributable to her compensable ankle injury, the OOJ, referring to Dr.
Smith's report, stated that there was “no discussion in the claimant's history that she had
open heart surgery.” Again, this is simply not true. As just discussed, Dr. Smith clearly
noted that the claimant had open heart surgery. Specifically, the first sentence in his report
under the heading “Past Medical History” is, “She had an open-heart surgery after a heart
attack two years ago performed on an emergency basis.”
In addition to mischaracterizing and misstating the evidence in the record, the
OOJ's decision, which was affirmed by the BOR, was clearly the result of an erroneous
conclusion of law. In that regard, the OOJ's decision implies that the claimant had the
burden of proving that her depression did not result from her open heart surgery. However,
that is clearly not the law pursuant to this Court's holding in Syllabus Point 1 of Myers,
supra. In Myers, the Appeal Board rejected a hearing loss claim finding that the hearing loss
was attributable to the claimant's age. This Court reversed that decision because the
physician's report and testimony submitted by the claimant indicated that his hearing loss
was bilateral in nature and consistent with the type of hearing loss observed in persons like
him who were exposed to industrial noise over a long period of time. Myers, 160 W.Va. at
772, 239 S.E.2d at 127. This Court reiterated in Myers that, “[I]t is not the claimant's burden
to negat[e] all possible non-occupational causes of his injury.” Id.
Finally, the OOJ's decision in the case at bar, which was affirmed by the BOR,
is in clear violation of W.Va. Code § 23-4-1g(a). The OOJ's decision states that, “No weight
is placed upon the findings of Dr. Webb or Dr. Caraway and their conclusions that the
claimant has a major depressive disorder, for this is clearly disputed in the report of Dr.
Smith, who indicated that there is not a major depressive disorder present in the claimant.”
W.Va. Code § 23-4-1g(a) clearly requires evidence to be assessed in terms of relevance,
credibility, materiality, and reliability. The statute simply does not permit the report of one
physician, or in this instance, two physicians, to be deemed unreliable and essentially ignored
simply because it contradicts the report of another physician. (See footnote 4)
It is obvious that the decision in this case was based solely upon the
recommendation of the OMM. However, the OMM's conclusion that the claimant's
depression resulted from her heart surgery was merely speculation and was actually incorrect.
As we demonstrated above, there was clear evidence in the record that the claimant's
depression developed before her heart surgery. Furthermore, while Dr. Smith did not believe
that the claimant had major depression, he did acknowledge that the claimant had a pain
disorder attributable to her 1997 compensable injury. Yet, the OOJ found Dr. Smith's report
unreliable because the OOJ erroneously concluded that Dr. Smith had failed to make a note
of the claimant's heart surgery. Again, the OOJ relied upon the findings of the OMM to
conclude that the claimant did not have a pain disorder as a result of her compensable 1997
injury. The OOJ clearly allowed the recommendation of the OMM to be dispositive in this
case which is not permitted by W.Va. Code § 23-4-1g(a).
Based on all the above, we find that the decision of the OOJ which was
affirmed by the BOR was improper and contrary to the applicable law. The preponderance
of the evidence clearly established that claimant has major depression and a pain disorder
resulting from her compensable physical injury. Therefore, her psychiatric condition should
have been held compensable.
Reversed.