Opinion
Record No. 0592-94-1
Decided: February 21, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Karen M. Rye, for appellant.
William C. Walker (Donna White Kearney; Taylor Walker, on brief), for appellees.
Present: Judges Baker, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Sera West (claimant) contends that the Workers' Compensation Commission (commission) erroneously concluded that claimant had received unauthorized medical treatment and that Beach Ford, Inc., (employer) was not responsible for the attendant costs. We disagree and affirm the commission.
On appeal, we construe the evidence in the light most favorable to the party prevailing below, employer in this instance. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). Findings of fact by the commission are binding and conclusive on appeal unless unsupported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989); Code Sec. 65.2-706.
While operating a motor vehicle incidental to her employment, claimant was involved in a collision. She immediately reported the accident by telephone to employer, and Sonya Umphlett, a co-worker and friend, was dispatched to return claimant to Beach Ford. En route, claimant declined Ms. Umphlett's offer to take her to a local hospital for treatment.
Once at Beach Ford, claimant completed an "accident form" and noted "scrapes and little cuts" and "what feels like . . . sore[ness]" to her shoulders, arm, and "upper back," all attributable to the accident. Charles Gregory, claimant's supervisor, was aware that she had previously refused treatment but, nevertheless, advised claimant that employer "would like for her to seek medical assistance," that there was a "list of doctors . . . for her to see," and that she would be transported to a "specific place" for an "examination." In response, claimant again declined medical care, insisting that she "felt fine," and "just . . . needed to get relaxed and calmed down." Gregory then decided not to "pursue the matter further," and permitted claimant "the rest of the day off."
Despite these representations to employer, however, claimant's mother scheduled an appointment with Dr. Edward Kessler, the family chiropractor, the very afternoon of the accident, and he immediately began a treatment regime which continued until November 15, 1991, at a total cost of $1095. Claimant acknowledged that she failed to notify employer of any accident-related medical care or attendant claim until contacted by employer's insurer on November 12, 1991.
Upon the occurrence of a work-related accident, Code Sec. 65.2-600 requires the injured employee to "give or cause to be given to the employer a written notice of the accident . . . immediately . . . or as soon thereafter as practicable . . . ." Id. (emphasis added). Absent "reasonable excuse . . ., [n]o compensation or medical benefit shall be payable unless such written notice is given within thirty days after the occurrence . . . ." Code Sec. 65.2-600(D). A delay in notification may be excused when an injury, initially thought trivial, is later learned through medical diagnosis to be serious. Westmoreland Coal Co. v. Coffey, 13 Va. App. 446, 449, 412 S.E.2d 209, 211 (1991). This principle simply recognizes that the responsibility of an injured employee to report such injury presupposes knowledge of its existence. Id.
Code Sec. 65.2-603 imposes a corresponding duty on employer to "furnish . . . free of charge to the injured employee, a physician chosen by the injured employee from a panel of at least three physicians selected by the employer . . . ." Code Sec. 65.2-603(A) (1) (emphasis added). "[T]he appropriate time . . . after an accident within which an employer must offer . . . the panel . . . must be determined by resort to a rule of reasonableness, with the time varying from case to case depending upon the different circumstances involved." Peninsula Transp. v. Gibbs, 228 Va. 614, 618, 324 S.E.2d 662, 664 (1985). When an employer fails to provide the panel, the employee is free to select his or her own physician. Goodyear Tire Rubber Co. v. Pierce, 9 Va. App. 120, 128, 384 S.E.2d 333, 337-38 (1989); Code Sec. 65.2-603(C).
Here, claimant repeatedly declined medical treatment and related transportation offered by employer immediately after the accident. Moreover, she failed to advise employer of any change in this respect until the chiropractic care in dispute was substantially completed. Under such circumstances, the employer had no notice that claimant was an "injured employee" contemplated by Code Sec. 65.2-603 and, therefore, no duty to act under the statute. Code Sec. 65.2-603 does not direct or authorize an employer to require an employee involved in an accident to seek medical attention. Rather, it prescribes the duties and responsibilities of an employer when an employee is injured in an industrial accident.
Accordingly, the commission correctly concluded that Dr. Kessler's treatment of claimant was unauthorized and employer was not responsible for the related costs.
Affirmed.