Opinion
Record No. 1971-92-2
July 6, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Daniel E. Lynch (William B. Pierce, Jr.; Williams, Butler Pierce, on brief), for appellants.
No brief or argument 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.
At issue in this appeal is the employer's liability for the cost of an MRI examination ordered by an unauthorized physician, but used by a subsequent authorized physician. We affirm the commission's order that the employer must pay that expense.
On September 24, 1989, Ernest L. Dunn suffered a compensable back injury while employed by Marlow Brothers. His initial authorized treating physician was Dr. Robert Pilcher, who released him to return to work on October 18, 1989. Dunn continued to experience difficulty with his back. On his own initiative, and without authority from the commission or the employer's carrier, he consulted Dr. John Lofgren, a chiropractor. Dr. Lofgren referred Dunn to Henrico Doctor's Hospital for the disputed MRI, which was performed June 25, 1991. On July 16, 1991, Dunn returned to Dr. Pilcher, who noted that the MRI disclosed a bulge at the L-4, L-5 disc, but concluded that this did not result from the September 24, 1989 injury.
Dr. Pilcher referred Dunn to Dr. William R. White, a neurosurgeon, who saw him on October 18, 1991. In his report dated October 18, 1991, Dr. White stated:
I reviewed his xrays and MRI scan. He has significant and severe degeneration of the L4-5 disc with a protrusion of the disc to the right of the midline.
On October 31, 1991, the employer's insurance carrier wrote Dr. White:
Dr. Pilcher feels very strongly that the patient's current condition is not related or due to the above claim. We ask that you please advise us of your professional medical opinion in regards of the relationship of the patient's current medical condition to that of the above claim.
On January 2, 1992, Dr. White replied:
It is my opinion that Mr. Dunn's current problem is related to his work-related injury. This conclusion is based upon the history which the patient himself related to me. If, in fact, the patient has had a persistent chronic back problem since the time of his injury, I would feel it necessary to related (sic) it to the injury.
In Jensen Press v. Ale, 1 Va. App. 153, 336 S.E.2d 522 (1985), we said:
Whether the employer is responsible pursuant to Code § 65.1-88 for past and future [medical] expenses of physicians and specialists . . . depends upon: (1) whether the treating physician made a medical referral of the patient; and (2) whether such other medical attention was necessary.
Now Code § 65.2-603.
Id. at 158, 336 S.E.2d at 525.
Whether "such other medical attention" be deemed necessary is for the attending physician or Industrial Commission to determine, not the employer. So long as a causal relationship between the industrial accident and the complaints which are the subject of the referral is shown, the employer is financially responsible for the medical attention which the attending physician deems necessary, subject to review by the Commission.
Id. at 159, 336 S.E.2d at 526 (citation omitted).
The commission held that Dr. Lofgren was not an authorized physician, but that Dr. White, seeing Dunn on referral from Dr. Pilcher, was authorized. Neither ruling was appealed. The employer contends that the MRI, being ordered neither by Dr. Pilcher nor by Dr. White, but rather by Dr. Lofgren, was not an authorized medical expense for which it is liable. The commission held:
We also find that a certain diagnostic test performed upon Dunn, MRI, at Henrico Doctor's Hospital, though initially ordered by Dr. Lofgren, is a basis for the latter authorized opinion of Dr. White, neurosurgeon, and establishes causal relationship between the employee's continuing symptoms and the industrial accident.
The record supports this determination. The MRI was a diagnostic tool used by the authorized physician.
The employer argues that in his January 2, 1992 letter, reporting his opinion that Dunn's current problems were related to his work-related injury, Dr. White stated: "This conclusion is based upon the history which the patient himself related to me." Dr. White did not refer to the MRI. However, in his October 18, 1991 report, setting forth his medical diagnosis, Dr. White used and relied on the MRI report.
The judgment of the commission is affirmed.
Affirmed.