Howell Metal Company, et al. v Michael B. Adams

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
HOWELL METAL COMPANY/COMMERCIAL METALS
COMPANY AND HIGHLANDS INSURANCE GROUP
OPINION BY
v. 	Record No. 1992-00-3 	JUDGE RUDOLPH BUMGARDER, III
MARCH 27, 2001
MICHAEL BRANDON ADAMS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Thomas G. Bell, Jr. (Timberlake, Smith,
Thomas & Moses, P.C., on brief), for
appellants.
Linda D. Slough (Brian J. McNamara; Chandler,
Franklin & O'Bryan, on brief), for appellee.
Howell Metal Company and its insurer appeal the Workers'
Compensation Commission's decision that psychiatric treatment
for Michael Brandon Adams was causally related to his work
injury. 	We conclude the evidence did not support the finding
and reverse the decision.
On October 21, 1998, the employee received chemical burns
to his feet, and the employer accepted the claim as compensable.
In March 1999, the employee's treating physician referred him to
a psychiatrist. 	The employee filed an application for payment
of psychiatric services claiming the need for treatment arose
out of his work injury. 	The deputy commissioner denied the
application finding that the employee had not established the

psychiatric treatment was "causally connected to his chemical
burns of 1998." 	The full commission reversed and awarded
psychiatric benefits for as long as necessary.
The employee's treating physician, Dr. Steven L. Phillips,
noted on February 8, 1999: 	"I think he has more problems with
anxiety and depression associated with this injury than he does
have physical injury itself. 	I think the sympathetic response
might be tied in with his emotional response to the entire
affair and that he might benefit from treatment of anxiety and
depression." 	The doctor prescribed an anti-depressant.
On February 17, 1999, Dr. Phillips assessed the employee's
condition: 	"Bilateral burns to feet with persisting symptoms
with some perpetuation probably resulting from anxiety and
depression related to the injury." 	On February 25, 1999, the
assessment was similar: 	"Bilateral foot burns with prolonged
symptoms possibly contributed to by anxiety/depression related
to the injury."
On March 31, 1999, Dr. Phillips referred the employee to
Dr. Jeffrey K. Lightner, a psychiatrist. 	Dr. Phillips explained
that he referred the employee "for a psychiatric evaluation in
order to properly define his condition and also to help
determine how much of it is related to his work injury. 	I
realize that this latter task may be difficult but may be very
important to the patient as well as his employer." 	In the
letter, Dr. Phillips noted, "There may be an element of
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sympathetically maintained pain involved here . . . ." 	He
concluded, "I felt it wise to have him see a professional for
accurate diagnosis and treatment if needed."
Dr. Lightner diagnosed the employee on April 1, 1999 with
bipolar paranoid reaction. 	He never made a narrative report of
his diagnosis. 	The employee's counsel solicited Dr. Lightner's
opinion on the causal relation in a one-question letter: 	"Is it
your opinion, to a reasonable degree of medical certainty, that
the treatment you are providing Michael Adams is reasonable,
necessary, and causally related to his work injury of October
21, 1998?" 	The letter provided spaces to check either "yes" or
"no." 	Dr. Lightner did not mark one of the two indicated
answers. 	Instead, he interlined, "to some degree, but I don't
know patient's mental state prior to the injury," and drew an
arrow to the space for indicating the "yes" response.
Dr. Phillips's notes and letter show that he had not
reached a decision about the cause of the employee's psychiatric
condition. 	Perplexed by the employee's condition, he referred
the employee to a psychiatrist and deferred to that specialist
for diagnosis and treatment. 	Dr. Phillips's note of May 3,
1999, made after Dr. Lightner's diagnosis, stated the disorder
was not related to the injury. 	The employee's "affective
disorder itself is not a work related illness[,] however his
work injury may have had some effect on it." 	In his final
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response to counsel's inquiry, he could only say that the
referral itself was "possibly" related to the injury.
The parties argue opposing interpretations of
Dr. Lightner's response to counsel's questionnaire. 	We need not
choose between them because either would be insufficiently
based. 	Dr. Lightner qualified his response "but I don't know
patient's mental state prior to the injury." 	The response made
clear the doctor could not answer the question without the
patient's history for the last ten years. 	He could not answer
the question in the format in which it was posed because he did
not have sufficient medical history upon which to base an
opinion.
Dr. Phillips's note of May 3, 1999 also noted that the lack
of adequate history prevented him from giving an opinion on
causation: 	"I explained to [the employee] that I would be
unable to say how much effect that the work accident had since I
have no knowledge of his status prior to three months following
the injury." 	In their concluding opinions, both doctors
indicated they needed additional medical history before
rendering an opinion on the relation of the psychiatric
condition to the injury. 	The commission erred in finding the
medical evidence credible when it lacked a sufficient base.
Clinchfield Coal Co. v. Bowman, 229 Va. 249, 252, 329
S.E.2d 15, 16 (1985), held the commission erred in attributing
weight to medical evidence based upon a faulty premise. 	The
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Court reversed the commission's finding that the doctor was
credible because the doctor's opinion was based on erroneous
information supplied by the claimant. 	"In Dr. McIlwain's first
report, he assumed that the condition he discovered resulted
from the 1978 accident. 	The basis for this assumption was the
incomplete information furnished by Bowman." 	Id. at 251-52, 329
S.E.2d at 16 (emphasis in original). 	"Whenever a physician's
diagnosis flows from an assumption that rests upon a faulty
premise, such as misinformation provided by a claimant, the
commission may refuse, and often will be required to refuse, to
attribute any weight to that opinion." 	Sneed v. Morengo, Inc.,
19 Va. App. 199, 205, 450 S.E.2d 167, 171 (1994) (citation
omitted). 	Drs. Phillips's and Lightner's reports were
insufficient to establish a causal connection between the
employee's work injury and his psychiatric condition beyond mere
conjecture.
The employee testified that ten years before the accident
he began to drink heavily after his six-month-old son died. 	He
admitted himself to a 30-day in-patient alcohol treatment
program, but he had not had any problems requiring psychiatric
treatment since then. 	He had not been diagnosed with either
bipolar disorder or paranoia before Dr. Lightner's diagnosis.
An employee's testimony may be considered in determining
causation, particularly where the medical evidence is
inconclusive. 	Russell Stover Candies v. Alexander, 30 Va. App.
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812, 826, 520 S.E.2d 404, 411 (1999). 	However, the employee's
statement that he did not receive psychiatric treatment for ten
years does not constitute evidence that his current condition
was causally related to his work injury. 	Causation is a factual
question that must be supported by credible evidence. 	McPeek v.
P.W. & W. Coal Co., 210 Va. 185, 188, 169 S.E.2d 443, 445
(1969).
We conclude that neither the medical evidence nor the
employee's testimony is sufficient to prove causation. 	"If the
expert medical witnesses cannot testify that it is at least more
probable than not that the disease arose out of and in the
course of employment, compensation must and should be denied,
not because the law requires more of medicine than it can
produce, but because the law requires more than simply proof
that the disease 'might' have been caused by a particular
result." 	Westmoreland Coal Co. v. Campbell, 7 Va. App. 217,
224, 372 S.E.2d 411, 416 (1988). 	Accordingly, we reverse.
Reversed.
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