Tuesday 25th April, 2006.

AM Liner East, Inc. and NorGuard Insurance Company, Appellants, against Record No. 1639-05-2 Claim No. 216-93-29 David T. Osburn, Appellee.

From the Virginia Workers’ Compensation Commission

On April 3, 2006 came the appellee, by counsel, and filed a motion praying th at the Court vacate the opinion rendered herein on March 21, 2006, asserting that the parties had previously settled the

matter. Thereupon came the appellants, by counsel, and filed a response in opposition thereto. Upon consideration whereof, the mandate entere d herein on March 21, 2006 in this matter, as well as the corresponding opinion releas ed on that date, hereby are vacate d, and the appeal is reinstated

on the docket of this Court.

A Copy,

Teste: Cynthia L. McCoy, Clerk By: Deputy ClerkCOURT OF APPEALS OF VIRGINIA

Present: Chief Judge F itzpatrick, Judge McClanahan and Senior Judge Willis Argued at Richmond, Virginia

AM LINER EAST, INC. AND NORGUARD INSURANCE COMPANY OPINION BY v. Record No. 1639-05-2 JUDGE JERE M.H. WILLIS, JR. MARCH 21, 2006 DAVID T. OSBURN

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION William S. Sands, Jr. (John C. D uncan, III; Duncan and Hopkins, P.C., on briefs), for appellants. Gerald G. Lutkenhaus for appellee.

AM Liner East, Inc. and its insurer (hereina fter referred to as “the employer”) filed an application seeking to terminate David T. Osburn’s temporary total disability (TTD) benefits and suspension of those benefits pending decision on the application. The commission rejected the employer’s application, holding that it failed to provide probable cau se to believe it meritorious. The employer appeals. Because we find that the commission abus ed its discretion in rejecting the employer’s application, we reverse the co mmission’s decision and remand this case for referral to its hearing docket. Background On September 6, 2003, Osburn was involved in a motor vehicle accident while working for the employer, which accepted the accident as compensable. The parties filed agreement forms stating that Osburn had sustained multiple injuries, that he was disabled, and that he was entitled to temporary total disability (TTD) benefits beginning September 7, 2003 and-2- continuing. On December 31, 2003, the commissi on entered an award memorializing this agreement. On January 4, 2005, at the employer’s request, Dr. Betsy Blazek-O’Neill, an occupational medical specialist, examined Osburn. Dr. Blazek-O’Neill also reviewed Osburn’s medical records, x-rays, a cervical MRI dated 11/26/03, a lumbar MR I dated 7/16/04, a cervical CT-myelogram dated 4/21/04, and his functi onal capacity evaluation (FCE) performed on December 9, 2004. In Dr. Blazek-O’Neill’s seven- page January 4, 2005 report, she opined that the level of capability indicated in the FCE report of “light to medium level” “did not appear to

be a valid result.” She noted that Osburn “dem onstrated markedly exaggerated pain behavior during the history and physical examination wi th very dramatic and histrionic comments, tearfulness, flinching, guarding, and grimacing.” She reported that he had “a non-physiologic gait pattern and non-dermatomal sensory changes. ” She noted that his gait did not change significantly when walking with or w ithout his cane. Fi nally, she opined: I am unable to propose any physiologic mechanism for any symptoms that Mr. Osburn is currently reporting. His symptoms are bizarre and non-physiologic. Th ey are not consistent with the abnormalities present on his diagnostic studies. The disc abnormality at C5-6 on the right has actually improved over time since Mr. Osburn’s injury although he is reporting progressively worsening symptoms. The location of the patient’s symptoms have been inconsistent from one physician visit to another in a manner that cannot be explai ned on a physiologic basis. It is my opinion within a reasona ble degree of medical certainty that Mr. Osburn has fully recovered from his work injury of 9/6/03. The symptoms that he conti nues to report are actually most consistent with malingering, because of their changing and non-physiologic nature. The patient has a history of depression, currently treated with Cybalta. This is unrelated to his work incident of 9/6/03. Mr. Osburn no longer requires treatm ent for problems related to the 9/6/03 work incident. He doe s not require any medications for problems related to the incident. There is no evidence of reflex sympathetic dystrophy, complex regional pain syndrome,-3- radiculopathy, or fibromyalgia. Th e patient is capable of working at his full duty position effectiv e immediately without restriction. Dr. Blazek-O’Neill also approved a job desc ription describing Osburn’s pre-injury laborer position with the employer, and signed a “Physician’s Affidavit of Recovery” under oath, stating that Osburn had fully r ecovered from his work injury and was capable of resuming his pre-injury position without restri ctions as of January 5, 2005. On February 24, 2005, the employer filed an application seeking to terminate Osburn’s outstanding award of TTD benefits based upon Dr . Blazek-O’Neill’s January 4, 2005 report with attachments, including the job description and Physician’s Affi davit of Recovery and seeking suspension of his benefits pe nding decision on th e application. In response, Osburn submitted (1) a report from Dr. Maria E. Simbra, a neurologist, dated June 16, 2004, (2) January 31, 2005 discharge instruct ions from Dr. Robert L. Greico, and (3) records from Dr. Michael Cozza dated January 10, 2005 and March 4, 2005. Dr. Simbra’s June 16, 2004 report stated th at in consultation she examined Osburn and

reviewed his medical records on th at date. She opined that he had “chronic pain.” Based upon his complaints of numbness and weakness on the right, she ordered an MRI of his brain. She concluded that “ [i]f there are no abnormalities that need to be addressed on the MRI scan, he

can return on an as needed basis.” Dr. Greico’s January 31, 2005 discharge instruct ions indicated a diagnosis of “myofascial pain syndrome” with follow-up in six weeks. Dr. Cozza’s “Return to Work Evaluation” dated January 10, 2005, indicated that Osburn could perfor m light work with certain restrictions with respect to lifting, standing, s itting, and climbing. A prescrip tion slip dated January 10, 2005 completed by Dr. Cozza indicated that Osburn “[m] ay return to light duty work on 1-13-05.” Dr. Cozza’s March 4, 2005 Attending Physician’s Re port stated that Osburn’s disability began September 17, 2003 and that he was capable of re turning to light duty work as of January 13,-4- 2005. Dr. Cozza diagnosed Osburn as suffering fr om “[p]ost traumatic fibromyalgia s/p whiplash injury; cervical DDD.” Osburn did not file a copy of his Decembe r 9, 2004 FCE until after th e expiration of the 15-day period allowed by Rule 1:5(C) for submitting responsive evidence to the employer’s application. Accordingly, the co mmission noted that the full FCE report was not in evidence. However, the commission acknowledged Dr. Blaz ek-O’Neill’s conclusi ons regarding the FCE findings because her report was before it. Based upon this record, the Senior Claims Ex aminer rejected the employer’s application, holding that it did not provide pr obable cause to grant a hearing and suspend compensation. In so ruling, the Senior Claims Examiner found as follows: In weighing, analyzing and ba lancing the medical evidence presented in support and in opposition to the Employer’s Application for Hearing, it is appa rent that the injured worker has not been released to return to pre-injury work. The Commission has consistently afforded greater weight to the opinion of the treating physician, rather than that of a physician that examines the employee on only one occasion. (Citations omitted.) On review, the commission affirmed the Senior Claims Examiner’s determination, finding as follows:

It is well settled that where there is a conflict in the medical evidence, the Commission typically affords greater weight to the attending physician’s opinion th an to the views of another physician whose involvement is upon a consultative basis only. In making a probable cause determination, the Senior Claims Examiner is allowed to weigh the medical evidence. In previous cases where the competing evidence on a probable cause determination consisted of an opinion from an employer’s independent medical examiner rel easing the claimant to work and several contrary reports from the claimant’s treating physician, we have upheld the rejection of the employer’s application.-5- In his January 10, 2005 disability slip, Dr. Cozza, the claimant’s treating physician, opined that the claimant is partially disabled and limited to light work with several restrictions. Dr. Cozza’s March 4, 2005 Attending Physician’ s Report similarly reflects that the claimant remains restricted to light duty and that the date he would be able to return to re gular work is unknown. The IME report relied upon by the defendants di scusses and disagrees with a functional capacity evaluati on report dated December 9, 2004, which apparently revealed that the claimant was capable of work at a light to medium job level. Under these circumstances, we cannot find that it was error for the Se nior Claims Examiner to accord greater weight to the reports of the claimant’s treating physicians than to the single independe nt medical report from Dr. Blazek-O’Neill. (Footnote and citations omitted.) The employer argues that Dr. Blazek-O’Neill ’s report was sufficient to put the question of Osburn’s ongoing disability at issue. It argue s that the medical evidence reflects more than just a disagreement between the treating physic ian and the IME physician over the extent of Osburn’s disability. Rather, it argues, Dr . Blazek-O’Neill’s repor t challenges Osburn’s credibility, Dr. Cozza’s diagnosis of fibromyalgia , and the validity of the FCE. The employer argues that rejection of its appli cation denied it the opportunity to litigate whether Osburn is still disabled as a result of the September 6, 2003 accident. It argues that the commission’s “pre-deciding a case where substantial, material issues regarding diagnosis and credibility have been raised, explained, and documen ted” was an abuse of discretion and denial of due process. Analysis This appeal involves the application of the commission’s pre-heari ng procedural rules to the facts of this case. To carry out the pr ovisions of the Workers’ Compensation Act, the commission has the power to make and enforce rules not inconsistent with the Act. See Code § 65.2-201. When a challenge is made to the commi ssion’s construction of its rules, “our review is limited to a determination whether the commission’s interpretation of its own rule was reasonable.” Classic Floors, Inc. v. Guy , 9 Va. App. 90, 93, 383 S.E.2d 761, 763 (1989).-6- “Under Commission Rule 1.4(A) and (B), an em ployer’s application fo r hearing based upon a change in condition must be in writing and unde r oath and must state the grounds for relief and the date for which compensation was last pa id.” Circuit City Stores, Inc. v. Scotece , 28 Va. App. 383, 386, 504 S.E.2d 881, 883 (1998). An employer’s application for hearing will be deemed not “technically acceptable” and will be rejected unless the employer’s designated supporting documentation is sufficient to support a finding of probable cause to be lieve the employer’s grounds for relief are meritorious. The commission has defined the standard of “probable cause” as “[a] reasonable ground for belief in the existence of facts warranting th e proceeding complained of.” Gallahan v. Free Lance Star Publ’g Co. , 41 Va. App. 694, 703, 589 S.E.2d 12, 17 (2003) (quoting Circuit City , 28 Va. App. at 386-87, 504 S.E.2d at 883) (internal citations omitted)). At this preliminary stage, whether an employer is entitled to a suspension of benefits and to a hearing on the merits of its ap plication hinges upon whether it s application is “technically acceptable.” See Rule 1.5(C). Plainly, under this st andard, it is not appropriate for the commission to balance the employer’s supporti ng documentation against competing medical evidence. Rather, the issue is whether the doc umentation supporting the application, if believed, supports review. Dr. Blazek-O’Neill’s report an d supporting documentation plainly satisfies this requirement. The report sets forth facts and findi ngs that, if believed, justify review. The issue

before the commission was not wh ether in light of all the ev idence Osburn’s award should be terminated, but whether employer’s supporting docu mentation justified review, consistent with the probable cause standard set forth in Giant of Virginia, Inc. v. Pigg , 207 Va. 679, 152 S.E.2d 271 (1967), adopted by the commission in Ke ys v. Lifetouch National School Studio , 98 WC UNP 1878467,VWC File No. 187-84-67, 1998 Va . Wrk. Comp. LEXIS 5088 (Dec. 22, 1998), satisfies this requirement.-7- Accordingly, we hold that the commissi on erred in finding that the employer’s application and supporting documenta tion was insufficient to provide probable cause to warrant the relief sought. The employer’s application wa s “technically acceptable.” The commission, in contravention of its own rules, erroneously ba lanced the employer’s application and supporting documentation against competing medical evidence and resolved the wei ght of the evidence without affording the employer a hearing. This was an abuse of discretion. For these reasons, we reverse the commission’ s decision and remand this case for referral of the employer’s applica tion to the hearing docket.

Reversed and remanded.-8- Fitzpatrick, C.J., dissenting. I respectfully dissent from the majority opinion and would affirm the commission’s decision finding that there was insufficient evid ence to refer the employer’s application to the hearing docket. An employer’s application for hearing will be deemed not “technically acceptable” and will be rejected unless the employer’s designated supporting documentation is sufficient to support a finding of probable cause to be lieve the employer’s grounds for relief are meritorious. The commission has defined the standard of “probable cause” as “[a] reasonable ground for belief in the existence of facts warranting th e proceeding complained of.” Gallahan v. Free Lance Star Publ’g Co. , 41 Va. App. 694, 703, 589 S.E.2d 12, 13 (2003) (quoting Circuit City Stores, Inc. v. Scotece , 28 Va. App. 383, 386-87, 504 S.E.2d 881, 883 (1998) (internal citations omitted)). See also Giant of Virginia, Inc. v. Pigg , 207 Va. 679, 684, 152 S.E.2d 271, 275 (1967). “The general rule is that when an attendi ng physician is positive in his diagnosis of a disease, great weight will be given by the courts to his opinion.” Pilot Freight Carriers, Inc. v.

Reeves , 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986) (citing McPeek v. P.W.&W. Coal Co,

Inc. , 210 Va. 185, 188, 169 S.E.2d 443, 445 (1969); Baltimore v. Benedict Coal Corp. 182 Va. 446, 453, 29 S.E.2d 234, 237-38 (1944); Bristo l Builder’s Supply Co. v. McReynolds , 157 Va. 468, 471, 162 S.E. 8, 9 (1932)). In the instant case, the em ployer’s supporting documentation was a medical report from a one time medical evaluation procured by the empl oyer that directly cont radicted the treating physician’s opinion. The claims examiner reject ed the application, and the employer appealed that decision to the commission. In upholding the claims examiner’s decision, the commission resolved both the weight and value of the empl oyer’s evidence and found it insufficient to meet the requisite probable cause standard. To r each this conclusion, the commission accorded-9- “greater weight to the attending physician’s opi nion than to the view s of another physician whose involvement is upon a consultative basis onl y.” “The determination whether the employer has met its burden is made by the Commission after ex ercising its role as fi nder of fact. In this role, the Commission resolves all conflicts in th e evidence and determines the weight to be accorded the various evidentiary submissions.” Bass v. City of Richmond Police Dept. , 258 Va. 103, 114, 515 S.E.2d 557, 563 (1999). In performing this role, the commission speci fically noted that the claimant’s treating physician, Dr. Cozza, opined that the claimant rema ined partially disabled, limited to light duty

work with numerous restrictions and that hi s return to work date was unknown. While the independent medical evaluation of Dr. Blazek-O’N eill relied on by the employer disagreed with this contention, I do not believe that it is our ro le to dictate the weight the commission must accord to this evidence or resolve the evidentiary conflict.

Thus I would affirm the commission’s deci sion to reject employer’s application for hearing and the suspension of claima nt’s benefits pending the hearing.