Tracy Eugene Talbot v. Black Industries, Inc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
TRACY EUGENE TALBOT
v. Record No. 1016-95-2 MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
BLACK INDUSTRIES, INC. FEBRUARY 27, 1996
AND
UNITED STATES FIDELITY & GUARANTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gary W. Kendall (Michie, Hamlett, Lowry,
Rasmussen and Tweel, on brief), for
appellant.
Robert M. McAdam (Katherine Cabell Londos;
Wooten & Hart, P.C., on brief), for
appellees.
Tracy Eugene Talbot ("claimant") appeals a decision of the
Workers' Compensation Commission denying his June 27, 1994 change
in condition application. Claimant contends that the commission
erred in (1) refusing to grant his request for a change in
treating physicians; (2) finding that he did not prove that his
April 14, 1994 right knee injury constituted a compensable
consequence of his February 12, 1992 compensable back injury; and
(3) not awarding him temporary total disability benefits on the
ground that he did not adequately market his residual work
capacity after March 29, 1994. For the following reasons, we
reverse the commission's ruling denying claimant's request for a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
change in treating physicians and we affirm the commission's
decision as to the remaining two issues.
Background
On February 12, 1992, while working for employer as a
foreman, claimant suffered a compensable back injury. Dr. Eric
Korsh, an orthopedic surgeon, diagnosed degenerative disc disease
at L4-L5 with mild spinal stenosis. On September 7, 1993, Dr.
Korsh performed surgery on claimant's back. On December 20,
1993, Dr. Korsh released claimant to return to work, noting that
he did not comply with work hardening. On January 13, 1994, Dr.
Korsh recommended that claimant continue rehabilitation with Dr.
Murray Joiner, Jr., a physical medicine and rehabilitation
specialist. Dr. Korsh also noted that "there is nothing further
that I can offer him." On January 12, 1994, Dr. Joiner released
claimant to return to full unrestricted work. However, on
February 10, 1994, claimant returned to Dr. Joiner complaining of
lower back pain. As a result, Dr. Joiner restricted claimant
from lifting more than seventy-five pounds.
Claimant testified that between February 1994 and April 14,
1994, he experienced episodes of leg numbness, which on two
occasions caused his knee to give way and caused him to fall.
Claimant contended that he did not tell Dr. Korsh about the leg
numbness because Dr. Korsh refused to treat him. On April 14,
1994, claimant's leg went numb and he fell on his right knee
while at home. Claimant sought treatment for this knee injury at
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the Memorial Hospital of Martinsville emergency room, where Dr.
Robert P. Albanese noted that claimant had undergone back
surgery, but that, even prior to the surgery, he had trouble with
his legs giving out. Dr. Albanese diagnosed a possible torn
medial meniscus of the right knee and referred claimant to Dr.
Peter Perry, an orthopedist.
Dr. Perry's April 28, 1994 office notes and Attending
Physician's Report reflect a history of a right knee injury,
which occurred at work a few weeks earlier. On June 7, 1994, Dr.
Perry noted that claimant clarified his earlier history by
stating that he had fallen at home, not at work. On July 21,
1994, Dr. Perry opined that he did not believe claimant's knee
problem was directly related to claimant's back injury. However,
Dr. Perry stated that claimant's knee problem might be indirectly
related to his back problem, if a giving way episode related to
the back injury led to claimant's torn meniscus.
On August 8, 1994, on a friend's recommendation, claimant
sought treatment from Dr. Hallett H. Mathews in Richmond,
Virginia, a three-hundred mile round trip from claimant's home.
On August 22, 1994, Dr. Mathews noted that, if claimant's back
and leg symptoms did not improve with conservative treatment, he
might be a candidate for further surgery. On October 12, 1994,
Dr. Mathews opined that claimant was unable to perform heavy
manual labor. Dr. Mathews restricted claimant from lifting more
than twenty pounds and advised him to avoid frequent bending,
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twisting, and sitting for extended periods of time. Dr. Mathews
also stated that claimant could not return to his pre-injury work
with employer unless these restrictions applied.
On October 21, 1994, employer notified claimant's counsel
that it did not accept Dr. Mathews as the treating physician and
offered claimant a new panel of physicians, consisting of Drs.
Strong, Crickenberger, and Stevens. Claimant called Drs.
Crickenberger and Stevens, both of whom refused to treat him.
Thereafter, employer substituted Dr. Perry for Dr. Crickenberger.
Claimant agreed to accept Dr. Perry as his treating physician.
However, Dr. Perry declined to accept claimant as a patient, so
claimant requested a referral to another doctor. When Dr. Perry
told claimant he should return to Dr. Korsh and obtain a referral
to Dr. Mathews, claimant stated that Dr. Korsh would not see him
and asked Dr. Perry to refer him to Dr. Mathews. On December 12,
1994, Dr. Perry wrote that claimant should return to Dr. Mathews
since claimant had seen Dr. Mathews before. Claimant testified
that his attorneys were pursuing a medical malpractice action
against Dr. Korsh. However, claimant did not know whether a
lawsuit had been filed on his behalf against Dr. Korsh.
Claimant testified that between February 1994 and August 15,
1994, he looked for work and registered with the Virginia
Employment Commission ("VEC"). He also stated that he called
potential employers between two and four times per week during
this time period. In response to employer's Interrogatory
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number 4, which was admitted into evidence, claimant provided the
names of nine potential employers he contacted between
February 12, 1992 and August 15, 1994. Claimant did not set
forth the date of the job contacts, the specific jobs, or whether
he filled out applications in either his testimony or his
interrogatory answer.
I. Change in Treating Physicians
The commission denied claimant's request for a change in
treating physicians on the ground that he failed to prove that
Dr. Korsh's treatment was inadequate or that Dr. Korsh abandoned
claimant as a patient.
"Whether a treating physician has released or abandoned his
patient most often is determined by the express intent of the
physician. Some situations may require analysis of the total
circumstances to determine whether discharge, release or
abandonment of a patient was intended." Jensen Press v. Ale, 1
Va. App. 153, 157, 336 S.E.2d 522, 524 (1985). Here, the
uncontradicted evidence in the record shows that, as of
January 13, 1994, Dr. Korsh had nothing further to offer
claimant. The evidence also shows that, in October 1994,
employer offered claimant a new panel of physicians consisting of
Drs. Strong, Stevens, and Crickenberger. Employer's October 1994
offer of a new panel effectively removed Dr. Korsh from treating
physician status. Therefore, employer waived its right to insist
that claimant return to Dr. Korsh. Moreover, because the panel
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physicians offered to claimant by employer refused to treat him,
employer should have offered claimant another panel of physicians
willing and able to treat him. Accordingly, we reverse the
commission's ruling requiring claimant to return to Dr. Korsh and
remand this case for the commission to enter an order requiring
employer to offer claimant a new panel of physicians.
II. Right Knee Injury
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"[W]here a causal connection between the initial compensable
injury and the subsequent injury is established, the doctrine of
compensable consequences extends the coverage of the . . . Act to
the subsequent injury because the subsequent injury 'is treated
as if it occurred in the course of and arising out of the . . .
employment.'" Bartholow Drywall Co. v. Hill, 12 Va. App. 790,
794, 407 S.E.2d 1, 3 (1991) (quoting Leonard v. Arnold, 218 Va.
210, 214, 237 S.E.2d 97, 100 (1977)). Unless we can say as a
matter of law that claimant's evidence sustained his burden of
proof, the commission's findings are binding and conclusive upon
us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173
S.E.2d 833, 835 (1970).
The commission found that claimant's right knee injury did
not qualify as a compensable consequence of his February 12, 1992
back injury. In so ruling, the commission found that claimant
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failed to prove that his leg numbness, which he claimed led to
his right knee injury, was caused by his compensable back injury.
Although claimant testified that he experienced leg numbness
and giving out after his September 1993 surgery, the
contemporaneous medical records of Drs. Korsh and Joiner for the
time following claimant's surgery did not support his testimony.
Moreover, in April 1994, claimant told Dr. Albanese that he had
trouble with his legs giving out even before his back surgery.
Based upon this evidence, the commission, in its role as fact
finder, was entitled to give little weight to Dr. Perry's
July 21, 1994 opinion on causation, which was premised upon the
leg weakness arising after the back surgery. Finally, the
medical records show that claimant first complained of right knee
pain on April 3, 1994, eleven days before his alleged fall.
Based upon this record, the commission did not err in ruling
that claimant's evidence did not prove a causal relationship
between his compensable back injury and his alleged episodes of
his leg numbness and his knee giving way. Accordingly, we cannot
find as a matter of law that he met his burden of proving a
compensable consequence.
III. Marketing/Disability
"In determining whether a claimant has made a reasonable
effort to market his remaining work capacity, we view the
evidence in the light most favorable to . . . the prevailing
party before the commission. . . ." National Linen Serv. v.
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McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). A
claimant still has the burden of proving his entitlement to
benefits, and to do that he has the burden of proving that he
made a reasonable effort to procure suitable work but was unable
to market his remaining work capacity. Great Atl. & Pac. Tea Co.
v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987).
The uncontradicted medical evidence proved that Dr. Joiner
released claimant to return to light-duty work on February 10,
1994, with a restriction against lifting more than seventy-five
pounds. Based upon claimant's failure to produce the names of
potential employers he contacted, the date of such inquiries, the
positions inquired about, and the dates of any applications he
completed, we cannot find as a matter of law that he met his
burden of proving he adequately marketed his residual work
capacity after March 29, 1994.
Moreover, claimant's testimony that he applied with the VEC
and that he called two to four potential employers per week
conflicted with his interrogatory answer, which listed only nine
employer contacts between February 12, 1992 and August 15, 1994.
Accordingly, the commission, as fact finder, was entitled to
give little weight to claimant's testimony.
For the reasons stated, we reverse the commission's ruling
ordering that claimant return to Dr. Korsh. The commission is
directed to enter an order requiring employer to offer claimant a
new panel of physicians willing and able to treat him, from which
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he can select a treating physician. We affirm the commission's
decision as to the remaining two issues.
Affirmed in part,
reversed and remanded in part.
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