Opinion
Record No. 2094-93-1
Decided: February 28, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert J. Macbeth, Jr. (Rutter Montagna, on brief), for appellant.
Joyce A. Melvin-Jones, Deputy City Attorney (City of Hampton, on brief), for appellee.
Present: Judges Baker, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Louis M. Johnson, Jr. (claimant) appeals from a decision of the Virginia Workers' Compensation Commission (commission). He alleges the commission erred when it found that he has not shown "other good reasons" for seeking medical treatment from an unauthorized chiropractor for injury alleged to have resulted from a work-related accident, and that he unjustifiably refused medical care from the authorized treating physician.
On appeal, factual findings of the commission will be upheld if supported by credible evidence. James v. Capital Steel Construction Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). In reviewing the record, we construe the facts in the light most favorable to the City of Hampton General Services (employer), the prevailing party below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1989).
On June 11, 1992, claimant sustained a compensable injury for which he was treated by Dr. G. F. Schmidt, a Sentara Hospital emergency room physician, who diagnosed a "Sprain/Strain" neck and referred claimant to Dr. Harold Cloud, a family practitioner for follow-up care.
Claimant was complaining of headaches on June 24, 1992, and instead of going to Dr. Cloud, claimant went to see Dr. Nat Shaye, a chiropractor who had treated him for headaches seven years previously. On that same day claimant called from Dr. Shaye's office to Nina James (James), Claims Administrator for employer and said:
Nina, I'm in the doctor's office now. I had an injury Monday, I know you haven't gotten the paperwork to have it over in my department. I'm in Dr. Shaye's office, I have headaches, had to get some relief, I know he's not on your list of physicians, what [sic] you want me to do.
James informed claimant that she had not received a report of injury but that in any event she could not authorize treatment by Dr. Shaye because he was not on the approved list. Within two days, James had received the report and it was determined that the injury was compensable. She immediately tried to reach claimant but was unable to contact him until June 29, 1992. On that day, she advised claimant of an approved list of doctors for treating compensable injuries. Because claimant wanted to be treated by a chiropractor she made an appointment for claimant to be seen by Dr. Randall B. Miers, a chiropractor who was on the approved list. James also authorized claimant to see Dr. Cloud to whom he had been referred by Dr. Schmidt. Dr. Cloud was on the approved list.
When claimant saw Dr. Miers, he told him he preferred to see Dr. Shaye, preventing Dr. Miers from effectively treating claimant. Claimant first saw Dr. Cloud on July 2, 1992. After several visits, Dr. Cloud referred claimant to Dr. James F. Allen, a neurosurgeon. An M.R.I. ordered by Dr. Allen disclosed that claimant was suffering from a lower back herniated disc. Dr. Allen advised claimant that surgery was the appropriate treatment for that condition and recommended that surgery be performed. Claimant requested a second opinion and received authorization to see Dr. Wallace Garner, another neurosurgeon. Dr. Garner confirmed Dr. Allen's diagnosis and opined that if claimant continued to be unable to resume his normal activities there was a good chance, but no guarantee, that surgery would be beneficial. Dr. Garner understood that claimant preferred to return to work until the pain would require the surgery.
Dr. Allen had advised claimant not to seek "chiropractic manipulation" as it could be harmful. Notwithstanding that advice, without authorization from employer, claimant on that same day returned to Dr. Shaye who saw claimant numerous times between September 14, 1992 through December. Employer refused to pay for Dr. Shaye's services. Claimant asserts that Dr. Shaye's treatment enabled him to return to his full-time employment and he asks that employer be required to pay for Dr. Shaye's services.
After being treated by Dr. Shaye on October 2, 1992, claimant returned to Dr. Allen. Upon learning that claimant had continued to be treated by Dr. Shaye, Dr. Allen declined to further treat claimant because he had failed to follow Dr. Allen's advice. Claimant returned to work on November 23, 1992 without having surgery.
I. Authorization of Physicians
Claimant asserts that because James failed to immediately provide him with the name of a physician to treat him when he first called from Dr. Shaye's office, he was then free to select his own physician as his treating physician. We agree with the commission's finding that this assertion is not supported by the record.
James testified that as soon as she determined that employer would accept claimant's injury as compensable, she called claimant and offered him a panel of physicians. She stated that claimant instructed her to choose a chiropractor for him. She chose Dr. Miers. Claimant admitted that James contacted him on June 29, 1992 and offered a panel of physicians from which he instructed her to choose one for him. In addition, James testified that she authorized claimant to seek treatment from Dr. Cloud after she discovered that claimant was displeased with Dr. Miers' treatment. James also stated that employer continually refused to authorize treatment from Dr. Shaye. On this record, we cannot say that there is no credible evidence to support the commission's opinion that employer timely offered claimant a list of treating physicians from which claimant could select one to treat his injury.
II. Code Sec. 65.2-603(C) Other Good Reasons
Claimant further contends that pursuant to the provisions of Code Sec. 65.2-603(C), he was authorized to select a treating physician of his own choosing. In relevant part, that code section provides:
If 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. (Emphasis added).
"Although the employer has no right to direct the course of treatment, the treating physician provided by the employer does." Shenandoah Products, Inc. v. Whitlock, 15 Va. App. 207, 213, 421 S.E.2d 483, 486 (1992). To require an employer to pay for the cost of an unauthorized physician's treatment under the "other good reasons" exception, it must be shown that the employee obtained unauthorized medical treatment in good faith, "the treatment provided by the employer was inadequate treatment for the employee's condition," and the unauthorized treatment was medically reasonable. Id. at 212, 421 S.E.2d at 486.
The commission found that Dr. Allen was the treating physician and the treatment recommended by him was confirmed by a second independent neurosurgeon as a method to provide "a good chance" of relief for claimant's condition. The commission reviewed the record and found that claimant had not proved that the treatment recommended by Dr. Allen was inadequate treatment for claimant's condition. Dr. Garner supported the treatment, and Dr. Shaye failed to comment on it. There is evidence to support the commission's finding of adequate treatment by the treating physician and none that refutes it. Claimant's return to work after a series of chiropractic treatments of itself is insufficient for this Court to hold that this record is without evidence to support the commission's finding. There is undisputed evidence in the record to show that claimant suffers from a herniated disc. There is also undisputed evidence in the record to show that surgery is an appropriate treatment for the condition. We cannot, therefore, say that the commission's finding was without evidence to support it.
For the reasons stated, we hold that it was not error for the commission to find no liability on the employer to pay Dr. Shay's charges to claimant. Accordingly, the judgment of the commission is affirmed.
Affirmed.