Opinion
Record No. 1972-92-2
July 6, 1993
FROM THE WORKERS' COMPENSATION COMMISSION.
Daniel E. Lynch (Roger L. Williams; Williams, Butler Pierce, on brief), for appellant.
Jay G. Kauffman (Kauffman Fraley, on brief), for appellee.
Present: Judges Coleman, Willis and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
ABF Freight Systems, Inc., hereinafter employer, appeals the Workers' Compensation Commission's ruling that Franklin D. Turner was entitled to temporary total disability wage benefits. On appeal, the employer argues that the commission erred (1) in finding that claimant was totally disabled from October 4, 1991, through March 10, 1992, excluding the period from February 2 through February 7, 1992; (2) in finding that claimant's disability was related to his industrial accident of July 17, 1990; and (3) in finding implicitly that Dr. Kyles was an authorized treating physician of the claimant such that the employer was responsible for the cost of his treatment. For the reasons that follow, we affirm the ruling in part and reverse in part.
Claimant sustained an injury on July 17, 1990, for which he received temporary total disability benefits for various intermittent periods of disability. This appeal arises out of claimant's application, filed December 18, 1991, for temporary total disability benefits for October 4, 1991, and continuing, excluding a one-week period in February, 1992. Following the initial accident and throughout the period of his disability, claimant regularly received treatment from an orthopaedic surgeon, Dr. Virgil May, whose office notes comprise the bulk of the medical record in this case. Claimant also received treatment from Drs. Brenda Ray and Michael Kyles.
The commission affirmed the deputy commissioner's award of temporary total disability wage benefits for October 4, 1991, through March 10, 1992 (excluding February 2 to 7, 1992), and his denial of benefits following March 10, 1992, based on claimant's failure to market his residual work capacity. The deputy commissioner held that Dr. May, claimant's authorized treating physician, did not refer claimant to Dr. Kyles and that, as a result, Dr. Kyles was not an authorized treating physician. Although not expressly addressing whether Dr. Kyles was an authorized treating physician, the commission noted in its opinion that Kyles saw claimant on referral from Dr. May.
The employer noted this appeal. Claimant did not appeal the commission's denial of benefits for the period after March 10, 1992.
I.
On appeal, we are guided by the principle that decisions of the commission as to questions of fact are conclusive and binding upon this Court if supported by credible evidence. Code § 65.2-706; see also Manassas Ice Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). We must view the evidence in the light most favorable to the claimant, the prevailing party below, and "[t]he fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding." Farrar, 13 Va. App. at 229, 409 S.E.2d at 826.
A.
In this case, ample credible evidence supports the commission's finding that appellee was totally disabled beginning on October 4, 1991. As the commission noted in its opinion, claimant's treating physician, Dr. May, noted on October 7, 1991, that claimant "[c]omplains of so much pain in the low back and legs. I don't feel he is able to continue with his work for 2 weeks." The commission's opinion then chronicled Dr. May's treatment of appellant over the next several months, emphasizing that, although May encouraged him to exercise and attempt to return to work, "this does not constitute a release to return to light work inasmuch as there are no particular restrictions or limitations noted." Finally, the commission relied on Dr. May's letter of January 22, 1992, in which he noted, "I feel that [claimant] has been unable to work since October 4, 1991 to the present. He is still under active care and unable to work at this time." Not until March 10, 1992, did Dr. May conclude, "I do feel he can work. I find no disability in this patient."
On that basis, the commission affirmed the deputy commissioner's award of benefits for the period of October 4, 1991, through March 10, 1992, excluding a one-week period in February, 1992, during which claimant tried unsuccessfully to return to work. The commission noted employer's argument that the record contained no credible evidence of disability because "the claimant's objective findings were limited at best and that Dr. May's statements regarding disability were actually a reiteration of what the claimant told him, rather than Dr. May's opinion." Although concluding that "[t]here is some merit to these observations and arguments," the commission upheld the award because, "in the final analysis, Dr. May certified disability, apparently in his own words, in his note of October 7, 1991, and certainly in his narrative report of January 22, 1992." The record also supports the conclusion that, except for the one-week period in February for which claimant does not seek benefits, Dr. May did not release claimant to return to work until March 10, 1992. The record contains credible evidence to support the commission's finding of total disability during the time in question.
B.
Appellant also contends that the commission erred in finding that claimant's disability resulted from his industrial accident of July 17, 1990. Although the commission did not expressly consider this issue, it adopted "the findings of fact and conclusions of law set forth in the Opinion appealed from," after "having reviewed the entire record in this case." It then affirmed the deputy commissioner's award, thereby implicitly finding the necessary causation. After reviewing the record on appeal, we reach the same conclusion. Dr. May's letter of January 22, 1992, amply supports this finding:
[claimant] has been seen and treated by me for injuries sustained in a workmen's compensation injury on 7/17/90. . . . I have been treating him on a regular basis. He has attempted to return to work on occasions. I feel that he has been unable to work since October 4, 1991 to the present. He is still under active care and unable to work at this time.
We also note that appellant did not address this assignment of error in oral argument before this Court. We hold, therefore, that the record clearly contains sufficient credible evidence to support a finding of causation. As stated above, the fact that the record may contain contrary evidence is irrelevant.
II.
Lastly, appellant contends that the commission erred in finding implicitly that Dr. Kyles was an authorized treating physician of the claimant. Under the commissioner's award, the employer is liable for the cost of all treatment rendered by Dr. May "and his referrals." The commissioner found "no referral of the claimant to Dr. Kyles." Although not expressly discussing the issue, the commission implied just the opposite by referring to Dr. Kyles as an "orthopedic surgeon . . . who saw the claimant on referral by Dr. May." In order to uphold this implicit finding of fact, we must find credible evidence in the record to support it. See Code § 65.2-706; Farrar, 13 Va. App. at 229, 409 S.E.2d at 826. However, the only reference we can find in the record on this subject is in Dr. May's notes of March 26, 1992, in which he states, "I understand from the patient that he was referred to Dr. Kyles by Dr. Brenda Ray." Claimant does not argue otherwise. Rather, he implies that Kyles should be classified as an authorized treating physician even in the absence of a referral, because May's inability to relieve him of his pain constituted the good cause necessary for him to incur additional medical expenses without prior approval of the insurer. See Code § 65.2-603(C); Rucker v. Thrift Transfer, Inc., 1 Va. App. 417, 420, 339 S.E.2d 561, 563 (1986) (decided under former Code § 65.1-88). Despite this argument, the deputy commissioner concluded that only Dr. May and his referrals would be considered authorized treating physicians, and the commission affirmed this result. Because the record contains no credible evidence to support the commission's implicit finding that claimant was referred to Dr. Kyles by Dr. May, we hold that the employer is not responsible for services rendered claimant by Dr. Kyles.
For the foregoing reasons, we affirm the commission's finding that claimant was totally disabled from October 4, 1991, through March 10, 1992, and that his disability resulted from his industrial accident of July 17, 1990. However, we reverse the commission's implicit finding that Kyles was an authorized treating physician for whose treatment employer was responsible.
Affirmed in part, reversed in part.