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MEDICAL CARE
"All questions arising under [the Workers' Compensation Act ("the Act")]... shall be determined by the Commission . . .." Code Sec. 65.2-700. "This grant of subject matter jurisdiction includes the authority of the commission to enforce its orders and to resolve coverage and payment disputes." Bogle Development Co. v. Buie, 250 Va. 431, 434, 463 S.E.2d 467, 468 (1995). Code Sec. 65.2-714 (A) provides the commission exclusive jurisdiction overall disputes concerning payment of the fees or charges of physicians and hospitals. Moreover, an employer has a statutory duty to provide an employee with free medical care related to a compensable injury. Code Sec. 65.2 -603(A). In Bogle, the Supreme Court ruled that the commission did not have jurisdiction to consider the reimbursement claim of a private health insurance carrier after the employer had reimbursed the employee for his out-of-pocket payment for his medical expenses. Bogle, 250 Va. at 434, 463 S.E.2d at 468-69. The Court ruled that the commission lacked jurisdiction to consider a claim by the employee's insurer against the employer for reimbursement of the insurer's expenses because "no right of the [employee] was 'at stake.'" Id. The commission did not have before it a request for reimbursement by a private health insurance company. Rather, the commission had before it a dispute among a medical care provider, an employee, and an employer concerning whether the employer was responsible for payment of claimant’s medical expenses. Such a dispute falls squarely within the commission's sole jurisdiction provided for under the Act. Code Sec. 65.2-714. Combustion Engineering, Inc. v. Ernest R. Lafon, Jr., Record No. 2327-95-3 (April 9, 1996).
Code Sec. 65.2-603(A)(1) provides in pertinent part as follows: As long as necessary after an accident, the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician . . . and such other necessary medical attention. "'So long as a causal relationship between the industrial accident and the . . . [treatment rendered] is shown, the employer is financially responsible for the medical attention which the attending physician deems necessary, subject to review by the Commission.'" Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 714, 427 S.E.2d 215, 217-18 (1993)(quoting Jensen Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525 (1985)). Moreover, Code Sec. 65.2-603 should be construed liberally in favor of the claimant, in harmony with the Act's humane purpose. See Goad, 15 Va. App. at 713, 427 S.E.2d at 217.
"Medical management of the employee is not to be directed by the employer. An employer can require an employee to select an attending physician from its panel of three, but only an attending physician or the [Workers' Compensation] Commission may require an employee to see another physician." Schwab Constr. v. McCarter, 25 Va. App. 104, 109-10, 486 S.E.2d 562, 565 (1997) (quotations omitted); see also Jensen Press v. Ale, 1 Va. App.153, 158, 336 S.E.2d 522, 525 (1985) ("A long-held principle of the . . . Commission, founded on Code Sec. 65.1-88 [now Code Sec. 65.2-603], is that medical management of the claimant is to be directed by the treating physician, not by an employer's representative.").
The commission may order a change in the treating physician when the physician refuses to timely provide copies of the employee's medical reports to the employer upon request. See Wiggins v. Fairfax Park Ltd. Partnership, 22 Va. App. 432, 442, 470 S.E.2d 591, 596-97 (1996). The commission has previously set forth several grounds upon which it will order a change in an employee's treating physician: inadequate treatment is being rendered; it appears that treatment is needed by a specialist in a particular field and is not being provided; no progress being made in improvement of the employee's health condition without any adequate explanation; conventional modalities of treatment are not being used; no plan of treatment for long-term disability cases; and failure to cooperate with discovery proceedings ordered by the Commission. Powers v. J. B. Constr. Co., 68 O.I.C. 208, 211 (1989)(construing Code Sec. 65.1-88 (now Code Sec. 65.2-603)).Additionally, when an employer seeks to change claimant's treating physician because the claimant has made little progress and no treatment plan has been derived, the employer must identify the alternative care that should be substituted and must demonstrate that the suggested care would be more appropriate and productive. See Bennett v. Fairfax County Sch. Bd., 74 O.W.C. 1, 4 (1995). Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 675, 508 S.E.2d 335, 341 (1998), Record No. 0768-98-3 (December 22, 1998).
There was no basis to order a change in treating physicians for a claimant with a deteriorating spine condition, where one of claimant's doctors did not endorse the suggestion of a functional capacity evaluation but did not immediately address a question about such an evaluation. Another doctor did not recommend a functional capacity evaluation, but rather, only raised it as a possibility. Claimant's doctor has given sound reasons for his belief that the claimant should not physically have to undergo it. Moreover, claimant's doctor's failure to immediately respond to the insurer's inquiry about the functional capacity evaluation does not constitute a basis to order a change in treating physicians, when the record otherwise reveals that he has promptly forwarded his reports following evaluations, and he already completed a functional capacity evaluation. Further, there were other avenues to obtain this information either through interrogatories or a deposition. Pepsi-Cola Bottlers of Washington, D.C., Inc. v. Joseph W. Kane, Record No. 2299-98-4 (February 16, 1999).
The commission did not err in denying a request for change in treating physicians. The claimant maintained that her doctor refused to treat her, but the evidence did not disclose that the doctor refused to treat the claimant. The record gives no indication that at any time the doctor voiced reluctance to attend to the claimant. the doctor's refusal to schedule one appointment with the claimant resulted from his professional opinion that a consultation by telephone was adequate to treat her complaint. "Whether a treating physician has released or abandoned his patient most often is determined by the express intent of the physician. . . . [I]t is a factual determination which must be proven by clear and convincing evidence in light of the high professional responsibility which a medical doctor owes to provide patient care and treatment." Jensen Press v. Ale, 1 Va. App. 153, 157, 336 S.E.2d 522, 524 (1985) (emphasis added). Indeed, in Jensen, the Court observed that "[o]ne refusal to see [a] claimant on request was not a release or discharge." Id. Claimant failed to demonstrate that her doctor expressed a clear intent to terminate his treatment of her. After her doctor did not schedule an appointment, claimant chose not to treat with this doctor, but treated with another doctor of her choosing. Claimant herself terminated her treatment with her doctor. Having done so, she was not entitled to pursue treatment with another doctor. Maria Emigdia Turpin v. Fairfax County School Bd., Record No. 2933-98-4 (November 2, 1999). WP Version.
The Commission properly awarded a change in treating physicians where claimant's current treating physicians have failed to develop an effective long-term treatment plan and have not made adequate progress in treating claimant's complex problems. Code Sec. 65.2 -603 provides that an employer must furnish an injured employee reasonable and necessary medical treatment free of charge. The commission is authorized to order a change in treating physicians. See Code Sec. 65.2 -603. The commission has previously identified the following grounds upon which it will order a change in an employee's treating physician: inadequate treatment is being rendered; it appears that treatment is needed by a specialist in a particular field and is not being provided; no progress being made in improvement of the employee's health condition without any adequate explanation; conventional modalities of treatment are not being used; no plan for treatment for long-term disability cases; and failure to cooperate with discovery proceedings ordered by the Commission. Powers v. J.B. Constr., 68 O.I.C. 208, 211 (1989) (construing Code Sec. 65.1-88 (now Code Sec. 65.2 -603)). Dana Corporation v. Leslie Marie Snyder, Record No. 1969-98-3 (February 23, 1999).
The commission did not err in refusing to order a change in claimant's treating physician on employer's application. There are several grounds upon which a change in an employee's treating physician will be ordered: "inadequate treatment is being rendered; it appears that treatment is needed by a specialist in a particular field and is not being provided; no progress being made in improvement of the employee's health condition without any adequate explanation; conventional modalities of treatment are not being used; no plan of treatment for long-term disability cases; and failure to cooperate with discovery proceedings ordered by the Commission." Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 675, 508 S.E.2d 335, 341 (1998) (quoting Powers v. J.B. Constr. Co., 68 O.I.C. 208, 211 (1989)). "Additionally, when an employer seeks to change claimant's treating physician because the claimant has made little progress and no treatment plan has been derived, the employer must identify the alternative care that should be substituted and must demonstrate that the suggested care would be more appropriate and productive." Id. (citing Bennett v. Fairfax County Sch. Bd., 74 O.W.C. 1, 4 (1995)). There were "fundamental conflicts" between the opinions of employer's two experts. While one doctor recommended "more aggressive evaluation and treatment," the other doctor opined that "further evaluations and intensive interventions for [claimant's] Chronic Pain Syndrome would be inappropriate." The doctor recommending a more aggressive course failed to explain how his recommended plan "would differ from the claimant's present treatment." Employer failed to identify a medical treatment program that would be "more appropriate and productive." Briggs, 28 Va. App. at 675, 508 S.E.2d at 341. Claimant's condition is "chronic," and the commission found his "lack of improvement to be understandable." Martinsville City School Bd. v. Timothy Myers, Record No. 2291-99-3 (May 2, 2000). WP Version.
Inadequate Pain Treatment. The record supports the commission's conclusion that good reason existed under Code Sec. 65.2 -603(C) to hold employer financially responsible for claimant's chiropractic treatment because claimant acted in good faith, the treatment provided by employer was inadequate, and the alternative treatment was medically reasonable and necessary. The evidence that the treatment provided by employer was inadequate in terms of pain relief and joint function supported the commission's conclusion that employer must provide claimant with a panel from which to choose a new treating physician.
"Reimbursement for unauthorized medical treatment should be the rare exception" and that "[w]hen an employee seeks treatment other than that provided by the employer or ordered by the commission, he or she does so at his or her own peril and risks not being reimbursed." Shenandoah Prods., Inc. v. Whitlock, 15 Va. App. 207, 213, 421 S.E.2d 483, 486 (1992). However, where the record supports a conclusion by the commission that the employee acted in good faith, that the treatment provided by the employer was inadequate, and that the alternative treatment was medically reasonable and necessary, the employee is entitled to payment for that alternative treatment. See id. at 212-13, 421 S.E.2d at 486.
Whether the employee acted in good faith is a credibility determination. See Christiansen v. Metro Bldg. Supply, 18 Va. App. 721, 724, 447 S.E.2d 519, 521 (1994), modified on reh'g on other grounds, 19 Va. App. 513, 453 S.E.2d 302 (1995). Thus, a finding of good faith made by the commission will be upheld if the record contains credible evidence to support that finding. Id. An employee's effort to obtain the approval of the treating physician or the employer before obtaining alternative treatment is evidence of good faith. See Whitlock, 15 Va. App. at 213, 421 S.E.2d at 486. Here, the evidence, viewed in the light most favorable to claimant, indicates that claimant's treating physician, Dr. Vokac, released her to full duty after opining that he did not "think [he had] anything else . . . to offer her." Claimant then "requested referral" to Chiropractor Eisenberg for treatment, but her request was denied. Only after Dr. Vokac opined that he had nothing else to offer her did she obtain alternative treatment. Thus, the record contains credible evidence to support the commission's finding that claimant acted in good faith.
The evidence also supports the commission's determination that the treatment provided by Dr. Vokac and his associates was inadequate and that the alternative treatment provided by Chiropractor Eisenberg was reasonable and necessary. "[T]he question of whether the disputed medical treatment was necessary within the meaning of Code Sec. 65.2 -603 is a mixed question of law and fact." Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 712-13, 427 S.E.2d 215, 217 (1993). Similarly, the question of whether the treatment provided by the employer was inadequate is also a mixed question of law and fact. Thus, the commission's conclusions regarding the necessity of the alternative treatment and inadequacy of the treatment actually provided are not binding on appeal. See id. In reviewing these issues, the court is guided by the principle that the opinion of the treating physician is entitled to great weight. See, e.g., Fingles Co. v. Tatterson, 22 Va. App. 638, 641, 472 S.E.2d 646, 647 (1996). However, "[m]edical evidence is not necessarily conclusive[; it] is subject to the commission's consideration and weighing." Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214 (1991).
Here, the record supports the commission's conclusion that the treatment claimant was receiving was inadequate and that the chiropractic treatment she obtained was reasonable and necessary. The Workers' Compensation Act requires that an "employer shall furnish or cause to be furnished . . . necessary medical attention." Code Sec. 65.2 -603(A)(1) (emphasis added). In keeping with prior decisions of the commission, see, e.g., Davis v. Old Oak Mining, No. 132-47-97, 1997 WL 1081372 (Va. Workers' Comp. Comm'n, May 19, 1997), that "necessary medical attention" as that phrase is used in Code Sec. 65.2 -603(A)(1) includes palliative treatment. 5 Arthur Larson & Lex K. Larson, Larson's Worker's Compensation Law, Secs. 94.04, 94.04(D) (2001). Further, "' when a claimant changes physicians without authorization and realizes appreciable benefit and relief from said change, that treatment is considered necessary.'" See Dell'Orco v. Elec. Data Sys. Corp., No. 180-19-28, 1999 WL 1092293 (Va. Workers' Comp. Comm'n Oct. 29, 1999) (quoting Wiggins v. Planters Peanuts, 62 O.I.C. 510, 512 (1983)).
Credible evidence in the record established that claimant continued to experience pain while under the care of Dr. Vokac, and Dr. Vokac indicated on October 4, 2000, "I don't think there is anything else that I have to offer her." Thereafter, claimant obtained chiropractic treatment, which she reported "helped her significantly," and Dr. Vokac documented an improvement in her range of motion after twenty-two chiropractic visits. Dr. Vokac discussed the impact of the chiropractic treatment with claimant and opined that it appeared to be both "helpful and appropriate" and that claimant's obtaining such treatment was "not unreasonable." Thus, credible evidence supports the commission's conclusion that the treatment claimant had received was inadequate because it did not relieve her pain and that the chiropractic treatment she obtained on her own was reasonable and necessary because it provided her with significant pain relief.
The record also supports the commission's conclusion that employer should be responsible for all of claimant's chiropractic visits. Although Dr. Vokac opined that five to ten visits would have been reasonable, he did so only after claimant had undergone over twenty visits. The commission was entitled to weigh his opinion in light of the treatment claimant actually received and to conclude that the greater number of visits was appropriate.
The commission may order a change in a claimant's treating physician if, inter alia, "'inadequate treatment is being rendered; it appears that treatment is needed by a specialist in a particular field and is not being provided; [or] no progress [is] being made in improvement of the employee's health condition without any adequate explanation.'" Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 675, 508 S.E.2d 335, 341 (1998) (quoting Powers, 68 O.I.C. at 211). Here, the commission found that Dr. Vokac's treatment was "more than adequate . . . relative to pharmacological treatment and evaluation based on objective diagnostic studies" but that it was inadequate in terms of "palliative pain relief and joint function." After Dr. Vokac opined on October 4, 2000 that he did not have "anything else . . . to offer [claimant]" from an orthopedic standpoint, claimant obtained additional medical treatment on her own. The record supports a finding that the additional treatment both improved claimant's range of motion and alleviated some of her pain. As previously discussed, treatment for palliative care qualifies as "necessary medical treatment" under Code Sec. 65.2-603 where, as here, the commission finds credible a claimant's complaints of continuing pain. Thus, the record supports the commission's finding that Dr. Vokac's treatment was inadequate in terms of "palliative pain relief and joint function." The record further supports the commission's decision requiring employer to furnish claimant with a panel of "physiatrists and/or pain management specialists" from which to choose a new treating physician. H.J. Holz & Son et al. v. Mathilda K. Dumas-Thayer, Record No. 2063-01-2 (March 19, 2002). WP Version.
In general, absent a referral from the authorized treating physician, claimant was not entitled to change treating physicians except by permission from the commission or the employer. See Shenandoah Prods., Inc. v. Whitlock, 15 Va. App. 207, 210, 421 S.E.2d 483, 485 (1992).The natural consequences of a compensable injury are compensable. Because the DVT and pulmonary emboli followed as natural consequences of the compensable back injury, the commission did not err in holding employer responsible for medical expenses related to treatment of those problems. See Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 283, 348 S.E.2d 876, 879 (1986).
The "two causes rule." That rule provides that a condition which has two causes, one related to a work injury, and one not, is compensable and the treatment of that condition will be the responsibility of the employer. See Shelton v. Ennis Bus. Forms, Inc., 1 Va. App. 53, 55, 334 S.E.2d 297, 299 (1985).
Whether the employer is responsible for medical expenses depends upon: (1) whether the medical service was causally related to the industrial injury; (2) whether such other medical attention was necessary; and (3) whether the treating physician made a referral. Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).
"Whether the employer is responsible for medical expenses . . . depends upon: (1) whether the medical service was causally related to the industrial injury; (2) whether such other medical attention was necessary; and (3) whether the treating physician made a referral to [sic] the patient." VolvoWhite Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). There is no evidence in the record to establish that the claimant suffered injuries other than to his neck, back, and left upper extremity in his May 15, 1996 accident. All other bills, except those for one doctor’s services, are clearly unrelated to the claimant's May 15, 1996 industrial accident. Robert Raphael Ambrogi, Jr. v. Manpower, Inc., Record No. 1360-99-4 (November 23, 1999). WP Version.
Code Sec. 65.2-603(B) aims to "place the cost of medical care on the employer and to restore the employee's good health" so that he may return to work. Richmond Memorial Hosp. v. Allen, 3 Va. App. 314, 318, 349 S.E.2d 419, 422 (1986) (interpreting former Code Sec. 65.1-88(B)). "It penalizes an employee 'who unjustifiably refuse[s] reasonable and necessary medical treatment.'" Holland v. Virginia Bridge & Structures, 10 Va. App. 660, 663, 394 S.E.2d 867, 868 (1990) (quoting Davis v. Brown & Williamson Tobacco Co., 3 Va. App. 123, 127, 348 S.E.2d 420,421 (1986)). When determining whether a refusal of medical treatment was justified, [courts] look not at whether the recommended procedure was medically justified, but rather whether the patient's refusal to submit to it was justified. See Holland, 10 Va. App. at 662, 394 S.E.2d at 868. "The matter of justification must be considered from the viewpoint of the patient and in the light of the information which was available to him." Id. We do not have before us a case where the employee lacked complete medical consultation and assurance. See, e.g., Holland, 10 Va. App. at 663, 394 S.E.2d at 868.
A chiropractor is not a "physician" for purposes of designation to a panel of physicians pursuant to Code Sec. 65.2-603(A)(1) of the Workers' Compensation Act. To interpret the term "physician" in Code Sec. 65.2-603 to include chiropractors would render the language of Code Sec. 65.2-603(D) superfluous and meaningless. Lois Kay Gray v. Graves Mountain Lodge, Inc., Record No. 0982-97-2 (January 20, 1998).
Where the employer disputed the compensability of the claim, claimant was free to seek medical treatment of her own choosing. See Bassett Burkeville Veneer v. Slaughter, 21 Va. App. 575, 578-79, 466 S.E.2d 127,129 (1996).
In the event of a compensable work related injury, Code Sec. 65.2-603 provides that the employer shall furnish free of charge to the employee a physician of his choice from a panel of at least three physicians and the attendant medical costs. If no panel of physicians is offered to the employee, he or she is free to select his [or her] own physician. Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App. 120, 128, 384 S.E.2d 333, 337-38 (1989) (decided under former Code Sec. 65.1-88). However, once the selection is made, the employee may not seek the treatment of another physician "'unless referred by [the first] physician, confronted with an emergency, or given permission by the employer and/or its insurer or [the] Commission.'" Davis v. Brown & Williamson Tobacco Co., 3 Va. App. 123, 126, 348 S.E.2d 420, 421 (1986) (quoting Breckenridge v. Marval Poultry Co., 228 Va. 191, 194, 319 S.E.2d 769, 770-71(1984)) (decided under former Code Sec. 65.1-88).
Code Sec. 65.2-603(B) provides for the suspension of benefits if a claimant unjustifiably refuses medical treatment. "Once a physician is selected, it is well settled that an employee who is referred for additional medical services by the treating physician must accept the medical service or forfeit compensation for as long as the refusal persists." Schwab Constr. v. McCarter, 25 Va. App. 104, 109, 486 S.E.2d 562, 564-65 (1997) (quoting Biafore v. Kitchin Equipment Co., 18 Va. App. 474, 479, 445 S.E.2d 496, 498 (1994)). In addressing this issue, "[t]he question is not whether the recommended procedure was justified, but whether the patient's refusal to submit to it was justified. The matter of justification must be considered from the viewpoint of the patient and in the light of the information which was available to him." Holland v. Virginia Bridge & Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867, 868 (1990). The Court of Appeals could not say that the commission erred when it held that claimant unjustifiably refused medical treatment. Claimant's primary treating physician Dr. Fatehi recommended that claimant undergo Dr. Barr's proposed treatment regimen. And although claimant testified that she did not think that Dr. Barr's treatment would help, the record also reflects that claimant had a conflict with Dr. Barr because of Dr. Barr's conclusion that claimant was not suffering from RSD. Especially considering Dr. Fatehi's August 11, 1997 recommendation that claimant pursue Dr. Barr's treatment plan, there is nothing in the record that tends to support claimant's concern that Dr. Barr's proposed course of treatment would be counter-productive. Kim Branch Harris v. VA Beach General Hosp., Record No. 0700-99-1 (September 14, 1999). WP Version.
The Workers' Compensation Commission did not err in applying the statute of limitations of Code Sec. 65.2-708 to deny claimant's request to reinstate benefits that had been suspended for unjustifiably refusing medical treatment effective September 12, 1997. Alleging she had cured her prior refusal of medical care, on October 10, 2000, more than two years after compensation was last paid, the worker filed an application to reinstate benefits. Code Sec. 65.2-708 required the worker to file a change in condition application within two years from the last date compensation was paid. Armstrong Furniture v. Elder, 4 Va. App. 238, 241, 356 S.E.2d 614, 615 (1987). That was September 12, 1997. The worker filed her application October 10, 2000, more than two years after she was last paid compensation. The application was not timely and was barred by the statute of limitations. Hercules, Inc. v. Carter, 13 Va. App. 219, 409 S.E.2d 637, aff'd en banc, 14 Va. App. 886, 419 S.E.2d 438 (1992) does not control this case because it was decided before the 1991 amendment the definition of "change in condition" that inserted the term "suspended": "any change in the conditions under which compensation was awarded, suspended, or terminated . . . ." Code Sec. 65.2-101 (emphasis added). With that amendment, the rationale of Hercules commanded a different result. Code Sec. 65.2-708 had not applied to suspended awards because the definition of "change of condition" did not include the term "suspended." However, the code section would apply to suspended awards after the General Assembly inserted the term into that definition. Kim Branch Harris v. Va. Beach General Hosp., Record No. 2750-01-1 (April 23, 2002). WP Version.
Code Sec. 65.2-603(B) bars a claimant from receiving further compensation if the claimant unjustifiably refuses to accept medical services provided by the employer. Whether or not a claimant has "refused" medical treatment is a question of fact. See Stump v. Norfolk Shipbuilding & Dry Dock Corp., 187 Va. 932,934-35, 48 S.E.2d 209, 210 (1948) (treating the commission's determination of whether a claimant has refused medical services as a question of fact); see also Chesapeake Masonry Corp. v. Wiggington, 229 Va. 227, 229-30, 327 S.E.2d 121, 122 (1985) (holding that the commission's finding that the claimant unjustifiably refused medical care was supported by credible evidence and therefore binding on appeal). It is fundamental that "factual findings of the commission are binding on appeal "if supported by credible evidence. Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 332, 381 S.E.2d 359, 360 (1989); see Code Sec. 65.2-706(A).Claimant's current unsuccessful attempt to quit smoking was not a "conscious or willful refusal to follow the treatment recommendations of her physicians regarding smoking." Shawnee Management Corporation v. Rhonda C. Hamilton, Record No. 0434-96-3 (November 4, 1997).
Code Sec. 65.2-603(B) provides for the suspension of benefits if a claimant unjustifiably refuses medical treatment. "Once a physician is selected, it is well settled that an employee who is referred for additional medical services by the treating physician must accept the medical service or forfeit compensation for as long as the refusal persists." Biafore v. Kitchin Equipment Co., 18 Va. App. 474, 479, 445 S.E.2d 496, 498 (1994). In such a case, "[t]he question is not whether the recommended procedure was justified, but whether the patient's refusal to submit to it was justified. The matter of justification must be considered from the viewpoint of the patient and in light of the information which was available to him." Holland v. Virginia Bridge Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867,868 (1990). "Medical management of the employee is not to be directed by the employer. An employer can require an employee to select an attending physician from its panel of three, but only an attending physician or the [Workers' Compensation] Commission may require an employee to see another physician." Richmond Memorial Hospital v. Allen, 3 Va. App. 314, 318, 349 S.E.2d 419, 422 (1986).
Unauthorized medical care is not the same as a refusal of medical care. The commission did not err in ruling that claimant's failure to select a physician from a panel did not bar her from receiving wage loss indemnity benefits, and did not err in ruling that her failure to select a physician from the panel rendered her treatment unauthorized. Claimant was injured at work on September 3, 1998, when a thirty to forty pound carton fell onto her right shoulder, neck, and back. When her supervisor arrived at work, claimant reported her injury and left work because she was experiencing pain. Although the supervisor did not direct claimant to any specific medical provider, claimant called her supervisor from home to tell her she intended to call Kaiser Permanente, claimant's medical insurance company, for medical treatment. Her supervisor told her to do what she needed to do to get treatment. That night, a person at Kaiser advised claimant by telephone to apply ice and heat on her injury, take Tylenol, and see a doctor in the morning if the injury was not better. The next morning, claimant went to Kaiser and was examined by a nurse practitioner, who instructed claimant to take several prescribed medicines and to return if the symptoms increased or persisted. After leaving Kaiser, claimant went to her place of employment and discussed completing an accident report with the store manager. Although claimant told the manager that she had gone to Kaiser for treatment, the manager did not tell her to seek treatment elsewhere. Claimant returned to Kaiser on September 8, 1998, and was evaluated by Dr. Beverly Pfister. Dr. Pfister diagnosed paracervical and paralumbar strain, advised claimant to continue her medication, and ordered physical therapy. By letter dated September 9, 1998, a claims adjuster for Southland's workers' compensation carrier advised claimant that her treatment by the Kaiser doctors was not authorized, that Southland would pay those doctors "to date," and that claimant should seek treatment from one of three doctors listed in the letter. Claimant received this letter three or four days after September 9; however, she decided to continue treatment at Kaiser and returned to see Dr. Pfister on September 15 because her "pain [was] worse." Dr. Pfister's notes reflect that at the date of this evaluation claimant was still awaiting her first visit to physical therapy. Claimant continued to receive treatment from Dr. Pfister and other doctors at Kaiser until she was released to return to light duty work on February 1, 1999.
"An attending physician selected by an employee becomes the treating physician if the employer fails or refuses to provide a panel of physicians." Davis v. Brown & Williamson Tobacco Co., 3 Va. App. 123, 126, 348 S.E.2d 420, 421 (1986). The principle is well established, however, that although Code Sec. 65.2-603 contains "no requirement . . . concerning the time after an accident within which an employer must offer an employee the panel of physicians prescribed by the Code section . . . , the appropriate time must be determined by resort to a rule of reasonableness, with the time varying from case to case depending upon the different circumstances involved." Peninsula Transp. Dist. Comm'n v. Gibbs, 228 Va. 614, 618, 324 S.E.2d 662, 664 (1985). This was a timely offer of a panel. Between the date of her accident and September 8, 1998, there is no evidence that the employer was aware that claimant was in need of extended medical care. There is no evidence that the employer was informed that claimant was scheduled for additional treatment after September 4, 1998. Claimant was released that day with recommended medications, and instructed to return only as needed. Not until September 8, 1998, when claimant first saw an actual physician at Kaiser, does it become apparent that claimant was likely to suffer a significant period of disability, and needed an attending physician and possibly a referral for specialized care. The carrier's offer of a panel of physicians, sent to claimant one day after her first treatment by Dr. Pfister, and received by claimant prior to her next treatment and before undertaking any subsequent referrals, was reasonable and timely. Under these circumstances the notification of the panel of physicians was timely, that claimant's continued treatment with the Kaiser physicians was unauthorized, and that Southland was not required to pay for the unauthorized treatment.
The finding of unauthorized treatment, "however, is not necessarily equivalent to a refusal of medical services under Code Sec. 65.2-603." Davis, 3 Va. App. at 127, 348 S.E.2d at 422. If medical care required under Code Sec. 65.2-603 is refused, further compensation is suspended unless the refusal is justified or until the refusal is cured. Richmond Mem. Hosp. v. Allen, 3 Va. App. 314, 317, 349 S.E.2d 419, 421 (1986) (citations omitted). That penalty for refusal of medical treatment must be based upon 'unjustified refusal.' Biafore v. Kitchin Equip. Co., 18 Va. App. 474, 478, 445 S.E.2d 496, 498 (1994). Code Sec. 65.2-603 may not be used to penalize an employee who has reasonably sought to restore her health by seeking additional treatment. See Davis, 3 Va. App. at 128-29, 348 S.E.2d at 423. Moreover, "[t]he matter of justification must be considered from the viewpoint of the [employee] and in light of the information which was available to [her]." Holland v. Virginia Bridge Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867, 868 (1990). Here claimant promptly sought medical treatment for her injury. Although she reported to her supervisor that she was receiving treatment, her supervisors did not comment on her choice of treatment. Before claimant received the letter from Southland containing notification of the panel, she had selected a treating physician and received treatment from that physician. Claimant followed the treatment regimen that was prescribed to her by the doctors at Kaiser. Claimant's doctor knew her history, and no evidence established that the treatment was inappropriate or unnecessary. Moreover, no evidence proved that claimant's continued treatment with the unauthorized physician adversely affected her recovery. The commission properly ruled that claimant did not unjustifiably refuse medical treatment. The Southland Corp, t/a 7-Eleven v. Sharon Welch, Record No. 0532-00-4 (October 31, 2000). WP Version.A cure by words alone, a "verbal cure," of an unjustified refusal of medical treatment, is effective if it is made in good faith. In the analogous area of the cure of a refusal of selective employment or vocational rehabilitation, courts have held that a verbal cure is effective if it is made in good faith. See Christiansen v. Metro Bldg. Supply, Inc., 18 Va. App. 721, 724, 447 S.E.2d 519, 521 (1994), aff'd on reh'g, 19 Va. App. 513, 453 S.E.2d 302 (1995) (refusal of selective employment may be cured by claimant's offer to accept the previously refused employment if made "in good faith"); James v. Capitol Steel Constr. Co., 8 Va. App. 512, 518, 382 S.E.2d 487, 490 (1989) ("[a]ssuming that the refusal to cooperate with vocational rehabilitation could be cured by a verbal statement of willingness to cooperate . . . it must be made in good faith"); Thompson v. Hampton Institute, 3 Va. App. 668, 671, 353 S.E.2d 316, 317 (1987) (claimant may cure refusal of selective employment when he "in good faith advises his employer that he is willing to accept such work"). Courts have "historically treated and discussed [these similar areas] in conjunction with one another," Hercules, Inc. v. Carter, 13 Va. App. 219, 223, 409 S.E.2d 637, 639 (1991), aff'd on reh'g en banc, 14 Va. App. 886, 419 S.E.2d 438 (1992). For a verbal cure of an unjustified refusal of medical care to be effective, it must be made in good faith. A claimant must demonstrate his or her good faith through an affirmative action or a showing of circumstances mitigating the failure to act. Fairfax County School Board v. Ellen M. Rose, Record No. 1700-97-4 (January 26, 1999).
The rule is well settled that nursing services, whether provided at a medical facility or in a patient's home, "are included among the medical benefits that an employer and insurer must furnish, provided the services are necessary and authorized." Warren Trucking Co. v. Chandler, 221 Va. 1108,1115, 277 S.E.2d 488, 492-93 (1981). In applying the rule, the following factors are relevant: [T]he employer must pay for the care when it is performed by a spouse, if (1) the employer knows of the employee's need for medical attention at home as a result of the industrial accident; (2) the medical attention is performed under the direction and control of a physician, that is, a physician must state home nursing care is necessary as the result of the accident and must describe with a reasonable degree of particularity the nature and extent of duties to be performed by the spouse; (3) the care rendered by the spouse must be of the type usually rendered only by trained attendants and beyond the scope of normal household duties; and (4) there is a means to determine with proper certainty the reasonable value of the services performed by the spouse. Id. at 1116, 277 S.E.2d at 493. In Chandler, the Supreme Court held that the services provided by Chandler's wife were not of the kind normally provided by a trained medical care provider. See id. at 1118,277 S.E.2d at 494. The evidence proved that Chandler's wife's "care consisted of bathing, shaving, feeding, assistance in walking, help with braces, aid upon falling, driving[,] and administering routine medication." Id. Services provided by claimant’s wife are "of the type usually rendered only by trained attendants and beyond the scope of normal household duties." Id. at 1116, 277 S.E.2d at 493. A spouse may receive reimbursement for necessary medical attention only if "there is a means to determine with proper certainty the reasonable value of the services performed by the spouse." Warren Trucking Co., Inc. v. Chandler, 221 Va.1108, 1116, 277 S.E.2d 488, 493 (1981).
Without a referral from an authorized treating physician, Code Sec. 65.2-603(C) provides for treatment by an unauthorized physician in an 'emergency' or 'for other good reason.'" Shenandoah Prods., Inc. v. Whitlock, 15 Va. App. 207, 212, 421 S.E.2d 483, 485 (1992). [I]f the employee, without authorization but in good faith, obtains medical treatment different from that provided by the employer, and it is determined that the treatment provided by the employer was inadequate treatment for the employee's condition and the unauthorized treatment received by the claimant was medically reasonable and necessary treatment, the employer should be responsible, notwithstanding the lack of prior approval by the employer. Id. at 212, 421 S.E.2d at 486. The claimant did not present evidence to prove that he sought unauthorized treatment in good faith, that the treating physician rendered inadequate treatment, or that the unauthorized treatment received by the claimant was medically reasonable and necessary. Therefore, we cannot say as a matter of law that the commission erred in failing to apply the "other good reasons" exception contained in Code Sec. 65.2-603(C), or in concluding that the employer was not responsible for the cost of the unauthorized treatment. "The mere fact that the unauthorized treatment is an acceptable method of treating the condition does not mean that the treatment should be paid for by the employer." Shenandoah Products, 15 Va. App. at 213, 421 S.E.2d at 486. Panagiotis G. Haramis v. G.T. Painting & Construction Company, Inc., Record No. 2489-94-1 (May 16, 1995).
On April 29, 1996, claimant strained his back while working in a manhole. He felt a "bad pop" in his back and a "shock" from the "top of [his] head to the bottom of [his] feet." claimant had a history of spondylolisthesis and prior back injuries. an MRI exam on May 3, 1996, revealed Grade I spondylolisthesis at L5-S1, minimal disc protrusion at L3-4 and L4-5 with degenerative disc disease, and "findings suspicious for herniated nucleus pulposus." Another MRI several weeks later revealed a bulging disk at C4-5 and C5-6 and a herniation at C6-C7. On October 9, 1996, claimant’s treating physician performed a lumbar fusion at L4-5 and L5-S1. Claimant’s neck and arm complaints continued and claimant’s doctor believed the back injury and neck injury and treatment was causally related to the work-related incident on April 29, 1996. Claimant underwent anterior cervical diskectomy on February 26, 1997. Although another doctor disagreed with the treating physician’s opinions on causation, credible evidence in the record established a causal connection between the accident on April 29, 1996 and claimant's continued back disability and treatment and his neck injury and treatment. "`So long as a causal relationship between the industrial accident and the . . . [treatment rendered] is shown, the employer is financially responsible for the medical attention which the attending physician deems necessary.'" Papco Oil Co. v. Farr, 26 Va. App. 66, 74, 492 S.E.2d 858, 861 (1997) (quoting Lynchburg Foundry Co. v. Goad, 15 Va. App. 710,714, 427 S.E.2d 215, 217-18 (1993)). Claimant was treated conservatively at first before surgery for his injuries caused by his accident was attempted. Claimant's treatment was necessary and reasonable. "Whether an employer is responsible for medical expenses . . . depends upon . . . (3) whether the treating physician made a referral to the patient." Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). When claimant’s treating physician decided to relocate his practice, he recommended Dr. Joiner for further treatment but claimant requested a referral to Dr. Knox and Dr. Mathews. The treating physician, in attempting to accommodate the wishes of a rehabilitation nurse and claimant, created a situation where the nurse believed the referral was to Dr. Joiner and claimant believed the referral was to Drs. Knox and Mathews. Drs. Knox and Mathews became claimant's authorized treating physicians. City of Martinsville v. Timothy Scott Turner, Record No. 2753-98-2 (July 27, 1999). WP Version.
The commission could properly conclude that trigger point injection therapy that provided temporary symptomatic relief was reasonable and necessary where other modalities of treatment were ineffective, and the carrier had refused to pay for referrals for other treatment. These facts also did not warrant a change in physicians. Town of Washington Water Works v. Johnny Ray Pullen, Record No. 1773-98-4 (December 15, 1998).
Claimant’s condition, though in part due to congenital abnormality of the craniocervical junction, was the direct result of a fall at work. The claimant’s doctor stated that the surgery performed to correct the abnormality was the direct result of this fall. The surgery would not have been performed had she not fallen. As the treating neurosurgeon, the doctor’s opinions were entitled to be given great weight by the commission. See Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986).
Code Sec. 65.2-603(A)(1) provides in pertinent part as follows: As long as necessary after an accident, the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician . . . and such other necessary medical attention. "'So long as a causal relationship between the industrial accident and the . . . [treatment rendered] is shown, the employer is financially responsible for the medical attention which the attending physician deems necessary, subject to review by the Commission.'" Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 714, 427 S.E.2d 215, 217-18 (1993) (quoting Jensen Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525 (1985)). Moreover, Code Sec. 65.2-603 should be construed liberally in favor of the claimant, in harmony with the Act's humane purpose. See Goad, 15 Va. App. at 713, 427 S.E.2d at 217. Credible medical evidence established that claimant's ITP was diagnosed during medically necessary treatment of his compensable back injury. To continue treatment of claimant's back with further surgeries in July and September, 1994, claimant's physicians required limited treatment of the ITP to normalize his platelet count. Thus, treatment of the pre-existing ITP was a medically necessary adjunct to the successful completion of that care required by claimant's work-related back injury. Accordingly, under the facts of this case, the commission did not err in holding employer responsible for medical treatment and for medical expenses incurred by claimant to treat the pre-existing condition. Claimant also had to be hospitalized for DVT and pulmonary emboli as a result of inactivity secondary to his multiple lumbar surgeries and residual low back and leg pain. The May 1995 treatment was necessitated by a recurrence of the DVT and pulmonary embolism, which flowed from the compensable injury. Therefore, because the DVT and pulmonary emboli followed as natural consequences of the compensable back injury, the commission did not err in holding employer responsible for medical expenses related to treatment of those problems. See Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 283, 348 S.E.2d 876, 879 (1986). Even if claimant's prednisone therapy also contributed to cause his DVT and pulmonary embolism, employer is still responsible for the cost of medical treatment related to those conditions under the "two causes rule." That rule provides that a condition which has two causes, one related to a work injury, and one not, is compensable and the treatment of that condition will be the responsibility of the employer. See Shelton v. Ennis Bus. Forms, Inc., 1 Va. App. 53, 55, 334 S.E.2d 297, 299 (1985). The medical records also established that claimant's doctor prescribed coumadin therapy to prevent pulmonary emboli, which might be caused by claimant's left lower extremity DVT. Because the DVT flowed as a natural consequence of the compensable back injury, employer is responsible for any necessary medical treatment related to the DVT. Accordingly, the commission did not err in holding employer responsible for the cost of the coumadin therapy. Papco Oil Company v. William Kenneth Farr, Record No. 0989-97-1 (November 18, 1997).
Although claimant's cervical disc condition was a distinct injury suffered in claimant's compensable accident, and a new claim for it was time-barred, it was nevertheless causally related to the compensable accident. The commission further found that "treatment for the claimant's cervical condition is necessary treatment related to the compensable accident to the extent that it is necessary to treat symptoms related to the shoulder injury." Thus, the commission held that because the proposed cervical disc surgery was necessary to treat the compensable right shoulder injury, the claim for that surgery was not time-barred and employer was responsible for its cost. Credible evidence supported these findings. Claimant's doctor opined that it was difficult for him to separate claimant's shoulder complaints from her disc symptoms, and he concluded that the disc surgery should improve claimant's right upper trapezius pain and might improve her rotator cuff tenderness. The commission could reasonably conclude that the disc surgery was necessary to treat the compensable shoulder injury, as well as the disc condition. Quality Inn Executive v. Zoila L. Umana, Record No. 1593-98-4 (June 15, 1999). WP Version.
Claimant's request for reimbursement for the cost of air conditioning repairs to vehicles other than his 1989 Plymouth Voyager was properly denied. In order to hold an employer liable for medical expenses pursuant to Code Sec. 65.2-603, claimant bore the burden of proving that those expenses were reasonable, necessary, and causally related to his compensable injury. The award of medical benefits deemed necessary by the Commission must be balanced against a reasonableness standard that compels the employer to pay for such benefits. First, the employer should be liable only for the cost of air conditioning repairs to the claimant's 1989 Plymouth Voyager, and the employer should be allowed to determine the necessity and reasonableness of future repairs before such costs are incurred. Second, the commission properly refused to hold employer liable to reimburse him for interest, i.e., finance charges, and other "out-of-pocket" costs associated with pursuing his claim. The Workers' Compensation Act does not provide any basis for an award of such costs. Third, res judicata applies "where there is a valid, personal judgment obtained by a defendant on the merits of an action. The judgment bars relitigation of the same cause of action, or any part thereof which could have been litigated between the same parties and their privies." K & L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). Because the issue of employer's liability for the cost of the July 25, 1995 home air conditioning expenses was previously decided against claimant and in favor of employer, the commission did not err in ruling that claimant could not seek to relitigate that issue. Finally, claimant's evidence did not limit his travel to direct routes to/from medical treatment or repair facilities. There was therefore no basis to assess travel costs against the employer, since the claimant essentially declined to present such evidence of reasonable travel, but only evidence of travel that was presumably inflated. Charles Francis Carter v. Arlington Co. Fire Dpt., Record No. 2394-98-4 (April 20, 1999). WP Version.
Code Sec. 65.2-603 (formerly Code Sec. 65.1-88) provides that "[a]s long as necessary after an accident, the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician . . . and such other necessary medical attention." In Warren Trucking Co. v. Chandler, 221 Va. 1108, 1116, 277 S.E.2d 488, 493 (1981), the Supreme Court set forth the standards to be applied in determining what constitutes "other necessary medical attention." One of those standards requires that "the medical attention is performed under the direction and control of a physician, . . . [who] must state [that] home nursing care is necessary . . . and must describe with a reasonable degree of particularity the nature and extent of duties to be performed by the [aide]." Id. In addition, "the care rendered by the [aide] must be of the type usually rendered only by trained attendants and beyond the scope of normal household duties." Id. In this case, no evidence in the record established that a friend of the claimant's performed "medical attention" under the direction and control of a physician. The doctor merely described "assistance with transfers, lifting and carrying to take tub baths, lifting and carrying to get in and out of the car, and lifting and carrying to do activities that would avoid excessive stress to the lower extremities which were severely injured." None of these duties, when considered in light of the claimant's condition and the extent of his disability, is of the type usually rendered by trained attendants. Chandler, 221 Va. at 1118, 277 S.E.2d at 494. Robert M. Anselmo v. Cherrydale Motors, Inc., Record No. 2503-98-3 (May 4, 1999). WP Version.
In Tageldin v. St. Paul Fire & Marine Insurance Company, VWC File No. 118-93-66 (3-12-92), payment was sought for home services that included cleaning bathrooms, changing linen in the bedrooms, helping take out trash and helping carry laundry to the first floor of the injured worker's apartment building. The commission held that those types of services did not qualify as "other medical attention" and that they were not compensable under the Act.
The Commission did not err in finding that medical treatment rendered to him by Dr. Alan Cason, a chiropractor, from September 11, 1997 through January 19, 1998 was not medically necessary. Dr. Helm stated on August 26, 1997, that continued chiropractic care was not necessary. Although Dr. Cason performed forty-four additional treatments from July 29, 1997 through January 19, 1998, he was unable to return claimant to work. On February 3, 1998, Dr. Godette indicated that the chiropractic treatments were perpetuating the muscle injury. Dr. Godette was able to return [Gutierrez] to full-duty work in a short period of time. We also note that Dr. Cason had the opportunity to treat [Gutierrez] on seventy-five different occasions through July 22, 1997, but was unable to improve [Gutierrez's] condition to the extent that [he] could return to work. Rigoberto C. Gutierrez v. Espina Stone Company, Record No. 0013-00-3 (May 9, 2000). WP Version.
The commission did not err in finding claimant presented sufficient evidence that the medical treatment he received after March 1, 1997 was causally related to the January 27, 1996 industrial accident in which he was injured. A March 1, 1997, slip at work did not cause him any additional problems. In fact, the claimant did not end up actually falling. Dr. Meade, in his December 1, 1997, letter, stated that this was not a new injury, but rather the result of the claimant's pre-existing ACL injury and his torn lateral meniscus. Ace House Movers, Inc. v. Michael N. Jackson, Record No. 1494-99-1 (May 9, 2000). WP Version.
The commission did not err in finding (1) that claimant unjustifiably refused to attend a medical examination, as directed by Code Sec. 65.2-607(A), scheduled on July 15, 1997, (2) that the employer, and its insurer did not engage in improper medical management by scheduling the July 15, 1997 appointment, and (3) that claimant failed to adequately market his residual work capacity. "[Courts] follow the settled rule that the construction accorded a statute by public officials charged with its administration is entitled to be given weight by the courts. Indeed, the [Supreme] Court has said that the commission's construction of the Workers' Compensation Act should be given 'great' weight." Bohle v. Henrico County School Board, 246 Va. 30, 35, 431 S.E.2d 36, 39 (1993). Code Sec. 65.2-607 provides, in relevant part: "A. After an injury and so long as he claims compensation, the employee, if so requested by his employer . . . , shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer . . . . B. If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to take or prosecute any proceedings under this title shall be suspended until such refusal or objection ceases and no compensation shall at any time be payable for the period of suspension unless in the opinion of the Commission the circumstances justify the refusal or obstruction." Evidence supported the conclusion that claimant was on notice that the July 15, 1997 appointment was an examination requested by the employer, and not an attempt by the employer to force claimant into a renewed course of treatment with a doctor he thought was no longer his doctor. An examination requested by the employer under Code Sec. 65.2-607 is not a forced course of treatment. Claimant joined a union after his injury and, once released to light duty work, sought employment only through the union channels. He telephoned the union employment "hot line" a few times per week and visited the local union hall every few weeks. A claimant who is released to light-duty work must prove that he has made a reasonable effort to market his remaining work capacity during any period for which benefits are sought. See Washington Metro. Transit Auth. v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 655 (1985).Claimant's evidence did not sustain his burden of proving that he made a good faith, reasonable effort to market his residual work capacity. This case is distinguishable from U.S. Air, Inc. v. Joyce, 27 Va. App. 184, 497 S.E.2d 904 (1998). In Joyce, the employee had worked for U.S. Air for seventeen years as a mechanic. His employment contract was under a union contract, which prohibited employees from seeking work outside of U.S. Air. After his injury, Joyce could not return to his previous job, and so requested a release from the employer to seek outside employment without penalty of losing that union job. U.S. Air refused. In Joyce's case, his very employment was tied to the union contract. The employer prohibited Joyce from seeking outside employment and then argued that Joyce had refused to seek such employment. James M. Blaker v. Perry's Heating, Air & Elec., Record No. 1010-99-1 (June 6, 2000). WP Version.
The commission did not err in finding that claimant's disability was related to his April 4, 1997 injury by accident and that the medical treatment provided by physicians other than claimant's treating physician was unauthorized. A doctor's statement that a certain condition is probably connected to the injury means there is a reasonable likelihood of causation, which "is sufficient to permit a trier of fact to accord the statement probative weight." Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30, 300 S.E.2d 746, 749 (1983). The commission may also consider "[t]he testimony of [an employee] . . . in determining causation, especially where the medical testimony is inconclusive." Dollar General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996). In addition, the commission may rely upon circumstantial evidence in finding that an injury was caused by a particular accident. See Van Geuder v. Commonwealth, 192 Va. 548, 557, 65 S.E.2d 565, 570-71 (1951). Claimant testified that his knee pain commenced with the work effort he was engaged in on April 4, 1997 and was never completely relieved by the medical treatment he received. The commission reviewed the medical evidence and found as follows: Dr. Wilhelm has consistently related the claimant's condition to the work-related incident. Dr. Wilhelm stated that the claimant suffered a pain syndrome that emanated from, and started with, the work-related injury. Similarly, both Dr. Camp and Dr. Soueidan noted the accident, the June 1997 surgery, and subsequent weak knee problems. Significantly, Dr. Stiles found marked left quadriceps weakness on August 25, 1997. No medical report advances a different cause. There is no medical evidence that any treatment was unreasonable or unnecessary. Claimant presented credible evidence that sufficiently proved his disabling condition was caused by the April 4, 1997 injury by accident. Accordingly, the commission's finding that claimant's injuries were causally connected to his industrial accident was not plainly wrong.
Where an employer initially denies that an injury is compensable, the employee is entitled to select a treating physician. See Bassett Burkeville Veneer v. Slaughter, 21 Va. App. 575, 578-79, 466 S.E.2d 127, 128-29 (1996). Once the employee selects a treating physician, the employee cannot unilaterally change physicians unless an emergency exists or the commission approves the change. See Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App. 120, 130, 384 S.E.2d 333, 339 (1989). In a related vein, Code Sec. 65.2-603(C) provides as follows: If in an emergency or on account of the employer's failure to provide the medical care during the period herein specified, or for other good reasons, a physician other than provided by the employer is called to treat the injured employee, during such period, the reasonable cost of such service shall be paid by the employer if ordered so to do by the Commission. The record proved and the commission found that claimant turned to his wife's insurance plan to pay for his medical treatment. Her plan required him to use her primary care physician, who referred claimant to Dr. Wilhelm. The commission found that claimant "had good reason to treat with [Drs. Wells, Camp, and Wilhelm] because [Marriott] had declined to accept the claim and payment for these physicians would be covered by his wife's health insurance." The commission also found that the treatment was reasonable, necessary and related to his work injury. Credible evidence in the record supports these findings. Marriott Int'l,Inc. v. Robert D. Carter,III, Record No. 0680-00-1 (January 9, 2001). WP Version.The Workers' Compensation Commission, did not err in holding that Code Sec. 65.2-605 is not a "rule" or "guideline" for the payment of workers' compensation healthcare services under a contract providing: "If any state law or regulation establishes rules or guidelines for the payment of health care services, reimbursement shall not exceed 80% of the maximum amount payable under such rules or guidelines. This rate of reimbursement shall apply whether such rules or guidelines are in existence at the time of execution of this agreement or established at a later time." As the commission noted, Code Sec. 65.2-605 establishes a standard that is often called the prevailing community rate. It provides a mechanism for resolving disputes over medical charges. However, the statute does not establish a minimum charge or schedule of fees, nor does it prohibit medical care providers from entering into agreements for fee reimbursement in workers' compensation cases. See Cousar v. Peoples Drug Store, 26 Va. App. 740, 743, 496 S.E.2d 670, 672 (1998) ("As a general rule, the construction afforded a statute by the public officials charged with its administration and enforcement is entitled to be given weight by a court."). Stephen J. Leibovic v. San Juanito Melchor, Trussway, Ltd., Record No. 0790-00-4 (March 6, 2001). WP Version.
The evidence did not support the finding that claimant's psychiatric treatment was causally related to his work injury. "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).
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 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). The doctors' reports were insufficient to establish a causal connection between the employee's work injury and his psychiatric condition beyond mere conjecture. Howell Metal Company v. Michael B. Adams, Record No. 1992-00-3 (March 27, 2001). WP Version.
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