Opinion
Record No. 1114-94-4
Decided: October 25, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Joseph F. Giordano; Semmes, Bowen Semmes, on briefs), for appellants. Appellants submitting on briefs.
(John L. Lilly, Jr., on brief), for appellee. Appellee submitting on brief.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Carestar, Inc. (employer) and United States Fidelity Guaranty Company, its insurer, appeal a decision of the Workers' Compensation Commission awarding benefits to Jeanne R. Stotler (Stotler), claimant. Employer contends on appeal that the commission erred in finding that (1) Stotler proved that she sustained temporary total disability as of August 17, 1993 as a result of her July 3, 1993 industrial accident, and (2) employer was responsible for the cost of Dr. Richard T. Olin's medical treatment.
The commission found that Stotler sustained a compensable injury by accident on July 3, 1993. This finding was not appealed.
Pursuant to Rule 5A:21(b), Stotler raises two additional questions for our consideration. She contends that the commission erred in finding that (1) she failed to prove that she sustained temporary total disability from July 4, 1993 through August 17, 1993, and (2) employer was not responsible for the cost of Dr. Kurt B. Olson's medical treatment. Finding no error, we affirm the commission's decision as to all issues presented by the parties.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Findings of fact made by the commission are binding and conclusive on appeal when supported by credible evidence. James v. Capitol Steel Construction Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
I. EMPLOYER'S QUESTIONS PRESENTED A. Disability
In holding that Stotler was entitled to temporary total disability benefits as of August 17, 1993, the commission stated:
Without clear evidence that the claimant was released to light duty restrictions after the MRI was conducted, and informed of that release, we find that the deputy commissioner erred in concluding that "[t]here is no indication thereafter that she was put on temporary total disability per Dr. O'Brien." Dr. O'Brien's initial statement that she be taken off work on August 17, 1993 until returning to his office after the MRI was performed cannot be considered a release to return to work because he, necessarily, had to review her test results to diagnose her condition. After reviewing the results, he did not indicate she could return to work.
Because we find that she had not been released to return to work, she, therefore had no duty to market her remaining work capacity after August 17, 1993.
Credible evidence supports these findings. There is no evidence contained in Dr. O'Brien's medical records to indicate that he released Stotler to return to work after excusing her from work as of August 17, 1993. Rather, the evidence shows that Dr. O'Brien reviewed Stotler's test results on August 27, 1993 and ordered physical therapy. On October 22, 1993, Dr. O'Brien referred Stotler to Dr. James R. Howe, a neurosurgeon, for further evaluation. Stotler testified that Dr. O'Brien never told her that she was released to return to work. In addition, there is nothing in Dr. Howe's medical records to indicate that he ever released Stotler to return to work. Finally, Dr. John P. McConnell, who examined Stotler on December 30, 1993 at employer's request, opined that Stotler should be able to return to work within the next several months. However, Dr. McConnell did not state that Stotler could work in any capacity prior to the anticipated return-to-work date.
Based upon the lack of medical evidence to support a release to return to work after August 17, 1993, we cannot say that the commission erred in awarding temporary total disability benefits to Stotler as of August 17, 1993.
B. Dr. Olin's Medical Treatment
Stotler initially sought medical treatment from Dr. Olin, her family physician, on July 20, 1993, for the injuries she sustained in the July 3, 1993 accident. Soon thereafter, employer offered Stotler a panel of physicians from which she chose Dr. O'Brien as her treating physician. Stotler began treatment with Dr. O'Brien on July 27, 1993. On September 27, 1993, the insurer informed the commission that Stotler's claim was denied on the basis that her injury did not occur in the course of her employment and her disability was unrelated to a compensable accident. On November 5, 1993, Stotler returned to Dr. Olin, who admitted her to Potomac Hospital for a CT myelogram.
The commission found that Stotler's treatments with Dr. Olin, before she selected Dr. O'Brien, and after the insurer's denial of her claim, were the responsibility of employer. We agree. Before Stotler was offered a panel of physicians by employer, she was free to seek treatment from Dr. Olin. Once employer denied Stotler's claim, it could not refuse to provide her with free medical service and also insist that she seek medical care only from its panel of physicians. See Bradley v. Southland Corp., 3 Va. App. 627, 629, 352 S.E.2d 718, 719 (1987). By returning to Dr. Olin after her claim was denied, Stotler selected him as her treating physician. Thus, we cannot say that the commission erred in finding employer responsible for the cost of Dr. Olin's treatment.
II. STOTLER'S QUESTIONS PRESENTED A. Disability
The commission awarded temporary total disability benefits to Stotler beginning August 17, 1993. Stotler contends that the commission should have awarded her such benefits as of July 4, 1993.
Stotler did not seek medical treatment following her July 3, 1993 accident until July 20, 1993. There is no medical documentation of disability prior to July 20, 1993. Dr. Olin did not excuse Stotler from work as a result of his July 20, 1993 examination. On July 27, 1993, Dr. O'Brien prohibited Stotler from lifting over thirty pounds. Dr. O'Brien's August 6, 1993 Attending Physician's Report indicated that Stotler was disabled on July 27, 1993, but could return to light duty on July 28, 1993. When Stotler returned to Dr. O'Brien on August 17, 1993, her symptoms had worsened. It was not until this date that Dr. O'Brien excused Stotler from work. Thus, based upon the lack of any medical evidence to support a finding of disability before August 17, 1993, we cannot say that the commission erred in failing to award temporary total disability benefits before this date.
B. Dr. Olson's Medical Treatment
"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." Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).
There is no evidence that Dr. Olin or any other treating physician referred Stotler to Dr. Olson for treatment. Stotler decided on her own to seek treatment from Dr. Olson. Thus, we cannot say that the commission erred in finding that the cost of Dr. Olson's treatment was not the responsibility of employer.
Additionally, there is no evidence to support application of any of the exceptions to the general rule regarding the compensability of medical expenses. There is no evidence that Stotler was confronted with an emergency which necessitated her seeking unauthorized medical treatment, that Drs. Olin, O'Brien, or Howe ever abandoned their treatment of her, or that there was any other good reason for her to seek unauthorized medical care.
For these reasons, we affirm the commission's decision.
Affirmed.