Opinion
Record No. 2226-92-4
July 20, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Karen A. Gould (Crews Hancock, on briefs), for appellants.
Terry L. Armentrout (Roger Ritchie and Partners, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appealing an order of the Workers' Compensation Commission, the employer challenges the commission's refusal to change the employee's treating physician. We hold that the employer failed to prove, as a matter of law, that it was medically necessary to change the employee's treating physician. We are, therefore, unable to reverse the commission's decision.
The employee injured her lower back while lifting a patient at Rockingham Memorial Hospital where she worked as a nurse. Her physician, an orthopedic surgeon, has treated her for this injury continuously beginning soon after her accident. He diagnosed her injury as sciatica and a herniated nucleus pulposa (displaced disc) at L4-5 and has employed spinal and epidural block injections, rest, physical therapy, and pain medication. The employee has had "episodes of intense pain" that have left her bedridden and unable to return to work.
The employee has declined surgery to treat her condition. She fears surgical infection which she has had in the past, increased pain, allergic reaction to medications and continued suffering with her current symptoms.
The opinions of physicians who have seen her vary. Her treating physician, although he believes that the employee has a better than fifty percent chance of improvement with surgery, does not believe surgery would improve her chances of returning to gainful employment. Another physician who saw the employee on October 21, 1991, believed that "the benefits of surgery well outweigh the risks of cooperative management." A neurosurgeon who saw her November 23, 1988, told her that "surgery might conceivably be helpful since nothing else has been." An orthopedic surgeon reported in March, 1987, that, in his opinion, the relief from surgery "would not be complete enough . . . to warrant surgery." In 1986, an orthopedic surgeon felt that "if her symptoms of pain continue, she will be a candidate for a laminectomy." Finally, one of two physicians who reviewed the employee's medical records, but did not see her, did not believe that she "would benefit from surgery." The other suggested that the employee "be more strongly persuaded to consider an alternative type of disc compression . . . to an open procedure."
An employee may not change the physician he or she chooses to be the treating physician, "unless otherwise ordered by the Commission." Code § 65.2-603(A)(1). "[O]nly an attending physician or the [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). Generally, medical necessity is the test for requiring that medical services be provided an employee under the Act. See Code § 65.2-603. This determination must be made by the attending physician or the commission. Id.
The commission found that the evidence failed to demonstrate a need to change the employee's treating physician. The commission's finding is conclusive and binding upon this court unless, as a matter of law, the employer's evidence sustained the employer's burden of proof. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). From the evidence in this case, we are unable to conclude, as a matter of law, that the employer sustained its burden of proof. Therefore, we affirm the commission's decision. AFFIRMED.
Our conclusion renders moot the other issues raised by the employer.