Kim Branch Harris v. VA Beach General Hosp. ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
KIM BRANCH HARRIS
MEMORANDUM OPINION *
v. Record No. 0700-99-1 PER CURIAM
SEPTEMBER 14, 1999
VIRGINIA BEACH GENERAL HOSPITAL AND
MANUFACTURERS ALLIANCE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jeffrey C. Flax; Kelberg, Childress & Flax,
P.C., on brief), for appellant.
(Richard E. Garriott, Jr.; Clarke, Dolph,
Rapaport, Hardy & Hull, P.L.C., on brief),
for appellees.
Kim Branch Harris (claimant) appeals from a ruling of the
Workers' Compensation Commission suspending claimant's benefits
on the ground that she unjustifiably refused medical treatment.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
On appeal, we review the evidence in the light most
favorable to the prevailing party below. See R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). "Factual findings by the commission that are supported
by credible evidence are conclusive and binding upon this Court
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
on appeal." Southern Iron Works, Inc. v. Wallace, 16 Va. App.
131, 134, 428 S.E.2d 32, 34 (1993).
So viewed, the evidence proved that claimant sustained a
compensable back injury on December 31, 1991. Claimant's
primary treating physician, Dr. Nasrollah Fatehi, subsequently
diagnosed claimant with Reflex Sympathetic Dystrophy (RSD). In
April 1997, Dr. Sidney Mallenbaum evaluated claimant and
recommended that she be examined by physiatrist Dr. Lisa Barr.
On May 19, 1997, Dr. Fatehi indicated that he did not object to
claimant being evaluated by Dr. Barr, and wrote that "[i]f I
agree with [Dr. Barr's] recommendation, I will encourage
[claimant] to comply."
After examining claimant on July 10, 1997, Dr. Barr
recommended:
[A] coordinated, interdisciplinary approach
to treatment through an outpatient
Spineworks program. This would also include
a series of selective right S1 nerve root
blocks and osteopathic manipulation, the use
of trigger point injections, and a
coordinated approach of reconditioning that
will also incorporate dural stretching, gait
training, functional activities, and lumbar
stabilization.
In her July 10, 1997 report, Dr. Barr indicated that she did not
believe that claimant had RSD. She further opined that
claimant's condition included "some degree of symptom
magnification."
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Claimant was upset that Dr. Barr questioned Dr. Fatehi's
RSD diagnosis. She reported Dr. Barr's diagnosis to Dr. Fatehi
who, on August 11, 1997, nevertheless "encouraged [claimant] to
make an appointment with Dr. L. Barr for discussion regarding
the proposed treatment and . . . told her to go along with Dr.
L. Barr's recommendation."
Claimant returned to see Dr. Barr on September 9, 1997.
Dr. Barr wrote that claimant reported "with an agenda and a very
defensive posture." Claimant indicated that she did not trust
Dr. Barr and that she was not interested in Dr. Barr's
recommended program. Claimant testified that Dr. Barr's
recommended program seemed like physical therapy, that she had
previously undergone physical therapy, and that physical therapy
had worsened her condition.
Kathy Farrahar contacted claimant the following day and
extended claimant an offer from Dr. Barr to see one of two other
physiatrists in Dr. Barr's office. Claimant did not, however,
return to Dr. Barr's office. Thereafter, the employer, Virginia
Beach General Hospital, filed an application for hearing
alleging that claimant had unjustifiably refused medical
treatment.
In a January 13, 1998 letter to claimant's attorney, Dr.
Fatehi wrote that, "in [his] opinion, (especially in view of the
failure of the previous trials of physical therapy) [he did] not
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feel that [claimant] would benefit from this sort of treatment."
Dr. Fatehi specifically disagreed with Dr. Barr's conclusion
that claimant was not suffering from RSD.
Following a hearing, the deputy commissioner suspended
benefits on the ground that claimant had unjustifiably refused
medical treatment. The full commission affirmed, finding that
Dr. Fatehi had specifically recommended that claimant follow Dr.
Barr's plan of treatment. The commission discounted Dr.
Fatehi's subsequent change of heart.
Code § 65.2-603(B) provides for the
suspension of benefits if a claimant
unjustifiably refuses medical treatment.
"Once a physician is selected, it is well
settled that an employee who is referred for
additional medical services by the treating
physician must accept the medical service or
forfeit compensation for as long as the
refusal persists."
Schwab Constr. v. McCarter, 25 Va. App. 104, 109, 486 S.E.2d
562, 564-65 (1997) (quoting Biafore v. Kitchin Equipment Co., 18
Va. App. 474, 479, 445 S.E.2d 496, 498 (1994)). In addressing
this issue, "[t]he question is not whether the recommended
procedure was justified, but whether the patient's refusal to
submit to it was justified. The matter of justification must be
considered from the viewpoint of the patient and in the light of
the information which was available to him." Holland v.
Virginia Bridge & Structures, Inc., 10 Va. App. 660, 662, 394
S.E.2d 867, 868 (1990).
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The record reflects that claimant's primary treating
physician recommended that claimant undergo Dr. Barr's proposed
treatment regimen. And although claimant testified that she did
not think that Dr. Barr's treatment would help, the record also
reflects that claimant had a conflict with Dr. Barr because of
Dr. Barr's conclusion that claimant was not suffering from RSD.
Especially considering Dr. Fatehi's August 11, 1997
recommendation that claimant pursue Dr. Barr's treatment plan,
there is nothing in the record that tends to support claimant's
concern that Dr. Barr's proposed course of treatment would be
counter-productive. Moreover, sensing a personality conflict,
Dr. Barr even offered to have claimant see another physiatrist
in her practice. Accordingly, we cannot say that the commission
erred when it held that claimant unjustifiably refused medical
treatment.
Affirmed.
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