Betty Lou Owen v. Dan River, Inc ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
BETTY LOU OWEN
MEMORANDUM OPINION* BY
v. Record No. 0825-02-1 JUDGE JAMES W. BENTON, JR.
DECEMBER 31, 2002
DAN RIVER, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Karen M. Rye (Kenneth J. Coughlan; Law Office
of Karen M. Rye, on brief), for appellant.
James A.L. Daniel (Elizabeth B. Carroll;
Daniel, Vaughan, Medley & Smitherman, P.C.,
on brief), for appellee.
This appeal follows our remand to the commission to
"determine whether [Betty Lou Owen's] refusal to undergo [a]
bone scan or pursue pain management was justified." Dan River,
Inc. v. Owen, Record No. 2222-00-3 (Va. Ct. App. April 24,
2001). The commission ruled that both refusals were
unjustified. Owen contends the commission erred in that ruling
and in failing to find the refusals had been cured. For the
reasons that follow, we reverse the commission's decision and
remand for partial reconsideration.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
Following our remand to the commission, a deputy
commissioner held a "hearing on the record" as permitted by the
commission's rules. The deputy commissioner's opinion notes
that the record establishes "Owen testified that she did not
refuse the bone scan . . . [and that] Dr. Cohen told her the
bone scan was not necessary." Ruling that Owen unjustifiably
refused the bone scan, the deputy commissioner indicated he was
"rely[ing] on Dr. Cohen's April 20, 1998, office note in which
he stated that Owen refused the bone scan because it was too
expensive." Moreover, finding that Dr. Cohen "asked [Owen] if
she wanted to see . . . a pain management [specialist], but
[Owen] and her husband both refuse this," the deputy
commissioner ruled that Owen unjustifiably refused pain
management treatment.
On review of the deputy commissioner's opinion, the
commission specifically found that "Dr. Cohen's notes reflect
. . . [that] 'Owen and her husband adamantly refused the bone
scan. They said it was too expensive.'" The commission also
found, however, that when Owen testified, she "denied refusing
to undergo the bone scan procedure." The commission further
found that Dr. Cohen reported that he "asked [Owen] if she
wanted to see . . . a pain management doctor, but [she] and her
husband both refused this." On these bases, the commission
affirmed the deputy commissioner's decision.
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II.
The record established that when Dr. Cohen broached the
issue of the bone scan with Owen, Dan River had denied coverage
and was not providing treatment to Owen as required by the Act.
That circumstance, however, does not insulate Owen from Dan
River's defense that she unjustifiably refused treatment offered
by the physician she selected. See Chesapeake Masonry Corp. v.
Wiggington, 229 Va. 227, 327 S.E.2d 121 (1985).
The record also established that Dr. Cohen's notes indicate
Owen refused the treatment "because it was too expensive." Both
the deputy commissioner and the commission relied on this
evidence. The commission made no finding, however, whether this
was a legitimate and justifiable basis to refuse the bone scan.
Obviously, if Owen had to bear the expense of the procedure and
the expense was financially burdensome to her, that fact would
bear upon the justification of her refusal. The commission has
ruled under other circumstances that economic adversity or
financial burden justifies a refusal of services. See e.g.,
Dotson v. F.A. Bartlett Tree Expert Co., 71 Va. WC 277, 278
(1992) (ruling that an employee justifiably refused selective
employment that required a lengthy commute and did not provide
reimbursement for expenses); Guthrie v. Ken Hurst Firearms
Engraving Co., 65 Va. WC 221, 222 (1986) (ruling that an
employee justifiably refused selective employment that would
cause "economic adversity"); Markell v. Falls Church Bowling
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Center, No. 1384794 (Va. Workers' Comp. Commission, May 30,
1997) (ruling that the employee was justified in refusing to
attend a medical examination when the employer failed to advance
travel expenses).
The rule is well established that "[t]he matter of
justification must be considered from the viewpoint of the
[employee] and in light of the information which was available
to her." Holland v. Virginia Bridge Structure, Inc., 10
Va. App. 660, 662, 394 S.E.2d 867, 868 (1990). If, from Owen's
viewpoint, the expense of the bone scan was the basis for her
refusal, and Dan River gave her no indication that it would pay,
then that circumstance would appear to be a factor in
determining whether Owen's refusal was justified. We hold,
therefore, that the commission erred in not addressing whether
Owen's statement to Dr. Cohen concerning the expense of the test
was a justifiable basis to refuse the treatment.
The record also strongly indicates Dr. Cohen did not
prescribe pain management but only gave Owen the option to
pursue it. His notes reflect that he "asked her if she wanted
to see . . . a pain management doctor." (Emphasis added).
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."
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Schwab Construction v. McCarter, 25 Va. App. 104, 109, 486
S.E.2d 562, 564-65 (1997) (emphasis added) (citation omitted).
We find no evidence in the record or in the commission's opinion
that Dr. Cohen made a referral or said to Owen that this was a
mandatory course of action. By giving Owen the option to either
pursue or not pursue the treatment, Dr. Cohen did not require
her to consider the consequences of selecting the action that
suited her choice.
We are required to construe Code § 65.2-603 "liberally in
favor of the [employee], in harmony with the Act's humane
purpose." Papco Oil Co. v. Farr, 26 Va. App. 66, 74, 492 S.E.2d
858, 862 (1997). The record contains no credible evidence to
suggest that Owen was referred, as that term is commonly
understood, to a pain management doctor. From the evidence in
the record and viewed from Owen's perspective, Dr. Cohen gave
Owen the option to either seek or not seek pain management
treatment. Absent some other factor or explanation on the
record, the exercise of that choice does not denote unjustified
refusal. We hold, therefore, that the commission erred in
ruling that Owen's decision not to pursue pain management
treatment was an unjustified refusal of medical treatment.
Owen further contends that the commission erred in finding
that any refusal had been cured. The record does not indicate
that Owen raised this issue when she filed her request for
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review before the commission. Accordingly, Rule 5A:18 bars our
consideration of this issue on appeal.
For these reasons, we reverse the commission's ruling that
Owen unjustifiably refused pain management treatment, and we
reverse and remand to the commission to reconsider whether Owen
was justified in refusing the bone scan.
Reversed and remanded.
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