STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS 

FILED 

THOMAS DAWSON, 

Claimant Below, Petitioner 

November 29, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-0063 (BOR Appeal No. 2050686) 

(Claim No. 2012001051) 

JAFLO, INC.,
 

Employer Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Thomas Dawson, by Lawrence E. Sherman Jr., his attorney, appeals the 

decision of the West Virginia Workers’ Compensation Board of Review. Jaflo, Inc., by Daniel 

G. Murdock, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated December 21, 2015, in 

which the Board affirmed a July 9, 2015, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s February 24, 2014, decision 

granting no psychiatric permanent partial disability award. 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. Dawson, a tree trimmer, was injured in the course of his employment on July 7, 

2011, when a tree limb fell and struck him. The claim was held compensable for concussion, 

cervical sprain, cervical spondylosis, right shoulder sprain and contusion, and post-concussion 

syndrome. In an independent medical evaluation on August 22, 2013, Ghazala Kazi, M.D., 

assessed 18% impairment for shoulder and neck conditions caused by the compensable injury 

and noted that Mr. Dawson should be referred to a neuropsychologist for rating for his memory 

loss and mood disorder. 

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Bobby Miller, M.D., performed a forensic psychiatric evaluation of Mr. Dawson on 

December 2, 2013, in which he diagnosed undifferentiated somatoform disorder, personality 

disorder, and post-concussive headaches. He also found evidence of malingering and symptom 

magnification. Dr. Miller found Mr. Dawson to be at maximum medical improvement. He noted 

that the somatoform disorder was not compensable, and the personality disorder was pre-existing 

and therefore also not compensable. He concluded that Mr. Dawson could return to work at any 

time and did not offer an impairment rating. The claims administrator granted no psychiatric 

permanent partial disability award on February 24, 2014. 

On June 18, 2014, Edward Jones, M.A., performed a psychological evaluation in which 

he noted that Mr. Dawson displayed mildly impaired immediate memory, moderately impaired 

attention, and moderately impaired concentration. Mr. Jones found that he was in the below 

average intellectual functioning range. There was no suggestion of the presence of a learning 

disorder. Mr. Dawson’s self-reported symptoms of anxiety and depression were severe. On June 

23, 2014, Ahmed Faheem, M.D., authored a report based on Mr. Jones’s findings. He diagnosed 

depressive disorder, anxiety disorder, and cognitive disorder related to post-concussion 

syndrome. Mr. Dawson’s global assessment of functioning score was assessed at forty-five. Dr. 

Faheem opined that Mr. Dawson’s cognitive, depressive, and anxiety disorders were directly 

related to the compensable injury. He found no pre-existing psychiatric problems. Dr. Faheem 

noted that while there were indications of symptom magnification, Dr. Miller was the only 

physician of record to diagnose malingering. Dr. Faheem asserted that he found no evidence of 

malingering or symptom magnification during his evaluation. He assessed 20% whole person 

impairment and apportioned 5% for any pre-existing condition that may have existed, though he 

found none. 

On November 3, 2014, Mark Casdorph, D.O., performed a psychiatric evaluation in 

which he diagnosed somatic symptom disorder with predominant pain, mild neurocognitive 

disorder, and alcohol use disorder. He noted that somatic pain disorder was excluded as 

compensable by West Virginia Code of State Rules § 85-20 (2006) and the presence of the 

condition signified pre-existing psychological impairment that is not compensable. Dr. Casdorph 

concluded that there was a causal relationship between Mr. Dawson’s initial neurocognitive 

complaints and the injury. However, the symptoms resolved by the time of the evaluation. He 

suggested that Mr. Dawson’s extended recovery time may have been due in part to his history of 

alcohol consumption. 

The Office of Judges affirmed the claims administrator’s decision on July 9, 2015. It 

found that Dr. Faheem disagreed with Dr. Miller’s conclusions and diagnoses of somatoform 

disorder and malingering. Dr. Casdorph noted that somatic pain disorder was excluded as 

compensable by West Virginia Code of State Rules §85-20. He opined that the presence of the 

condition signified pre-existing psychological impairment that is not compensable. Though Dr. 

Casdorph found that there was a causal relationship between Mr. Dawson’s initial 

neurocognitive complaints and the compensable injury, the neurocognitive complaints had 

resolved by the evaluation. The Office of Judges determined that a preponderance of the 

evidence, as concluded by Dr. Casdorph, shows that the psychiatric effects of the compensable 

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injury were no longer impairing Mr. Dawson. His current complaints were found to be the result 

of non-compensable factors. The Office of Judges noted that he had been evaluated by numerous 

mental health practitioners. In October of 2011, a psychological evaluation included the 

diagnoses of pseudodementia, depression, and alcohol amnestic syndrome. In December of 2011, 

a neuropsychological evaluation found that Mr. Dawson’s cognition was consistent with learning 

difficulties and he suffered from cognitive weakness, depression, post-concussive syndrome, and 

alcohol use. In February of 2011, an evaluation found dementia secondary to alcohol 

consumption, depression, and anxiety. An evaluation in December of 2013 found significant 

symptom magnification and malingering. On the other hand, the Office of Judges noted that Dr. 

Faheem’s report found no evidence of malingering or symptom exaggeration. 

The Office of Judges noted that Dr. Casdorph found Mr. Dawson to be exaggerating his 

psychological symptoms and memory loss. His evaluation performances varied to a degree that 

would not be expected in a patient with permanent brain damage as a result of the instant injury. 

Further, Dr. Casdorph found he could care for his basic needs and was involved in activities and 

relationships. He suggested that Dr. Faheem was not aware of Mr. Dawson’s extensive history of 

alcohol consumption and preinjury cognitive limitations. The Office of Judges found that Dr. 

Faheem rated Mr. Dawson’s global assessment of functioning at forty-five. This low of a score 

would indicate significant impairment levels which would require direct supervision. The score 

would also indicate a need for intensive outpatient and frequent inpatient treatment. Mr. Dawson 

does not exhibit impairment near this level. Lastly, the Office of Judges found that Dr. Faheem’s 

report indicated Mr. Dawson had no pre-existing problems. However, Dr. Faheem apportioned 

5% for non-compensable factors. In doing so, he provided no justification for his decision and 

did not describe the non-compensable factors. The Board of Review adopted the findings of fact 

and conclusions of law of the Office of Judges and affirmed its Order on December 21, 2015. 

On appeal, Mr. Dawson argues that he developed depression, anxiety, concussion, and 

post-concussive syndrome as a result of the compensable injury and the reports of Mr. Jones and 

Dr. Faheem establish that he has 15% permanent partial disability due to his psychiatric 

conditions. Jaflo, Inc., asserts that Dr. Faheem’s recommendation of 20% psychiatric permanent 

partial disabiliaty greatly exceeds the impairment guidelines found in West Virginia Code of 

State Rules § 85-20-Exhibit B (2006). It argues that high of impairment would put Mr. Dawson 

at the severe level and there is no indication that he requires direct supervision or suffers from 

serious impairment in social or occupational functioning. 

After review, we agree with the reasoning of the Office of Judges and conclusions of the 

Board of Review. A preponderance of the reliable evidence indicates Mr. Dawson suffers from 

non-compensable psychological issues. Dr. Faheem’s report finding 15% psychological 

impairment as a result of the compensable injury is unreliable. Dr. Faheem’s findings are 

excessive and not supported by the remainder of the evidentiary record. 

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. 

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Affirmed. 

ISSUED: November 29, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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