Mullican Flooring and Bituminous Fire & Marine Ins. Co. v. David Phillip Parsons ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements
Argued at Salem, Virginia
MULLICAN FLOORING AND
BITUMINOUS FIRE & MARINE
INSURANCE COMPANY
MEMORANDUM OPINION* BY
v. Record No. 2979-03-3 JUDGE JEAN HARRISON CLEMENTS
JULY 20, 2004
DAVID PHILLIP PARSONS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Lisa Frisina Clement (Ramesh Murthy; Penn, Stuart & Eskridge, on
brief), for appellants.
D. Allison Mullins (Lee & Phipps, P.C., on brief), for appellee.
Mullican Flooring and Bituminous Fire & Marine Insurance Company (collectively,
employer) appeal a decision of the Workers’ Compensation Commission (commission)
permitting David Phillip Parsons (claimant) to change his treating physician and denying
employer’s application to suspend compensation for claimant’s unjustified refusal of medical
treatment. Employer contends the evidence was insufficient to support the commission’s
findings that (1) claimant was entitled to change treating physicians and (2) claimant did not
unjustifiably refuse medical treatment. Finding no error, we affirm the commission’s decision.
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
The relevant facts in this case are not in dispute. On July 17, 2002, claimant sustained a
compensable injury to his neck while working for employer. He was subsequently examined by
Dr. Matthew Wood, who diagnosed a ruptured cervical disc and recommended surgery. A
second opinion by Dr. Jim Brasfield was in agreement, and on September 17, 2002, Dr. Wood
performed a “C6-7 posterior hemilaminotomy and discectomy” on claimant.
Claimant’s injury-related problems continued, however. On November 13, 2002,
claimant returned to Dr. Wood’s office complaining of “bilateral arm pain.” Dr. Wood ordered
an MRI and a myelogram. On November 25, 2002, Dr. Wood noted that the myelogram showed
a recurrent disc protrusion at C6. Dr. Wood recommended a “complete diskectomy by the
anterior approach.” Dr. Wood further noted that claimant requested a second opinion that would
be arranged by claimant’s “rehab nurse and insurer.” Dr. Wood indicated that he was “happy to
assist in getting this evaluation accomplished expeditiously,” adding, “Hopefully, he can be seen
relatively soon, and we will be happy to have him back after his second opinion evaluation.”
On December 4, 2002, Jan Christensen, R.N., claimant’s rehabilitation case manager,
sent a note to Dr. Ken Smith, requesting that he evaluate claimant and provide a second opinion.
Christensen noted that both claimant and employer’s insurance carrier were in favor of obtaining
a second opinion. Claimant testified that he saw Dr. Smith for a second opinion at the insurance
carrier’s request.
Dr. Smith examined claimant on January 20, 2003. He agreed that claimant needed an
“anterior cervical discectomy and fusion at C6-7 with plating.” In his report, Dr. Smith noted
that he “would be available to offer this procedure to the patient or he may return to Dr. Wood
for the procedure.” No follow-up appointment was scheduled at that time.
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Claimant returned to Dr. Wood’s office on January 24, 2003. Regarding that visit,
Dr. Wood noted as follows:
I had a long talk with David . . . . David had requested a second
opinion with Dr. Ken Smith and that was arranged for him by his
rehab nurse for the insurance company. After seeing Dr. Smith,
David tells me he is more comfortable with his care and would
rather have his surgery done by Dr. Smith. The re[ha]b nurse has
discussed this with me as well today and she tells me she will
discuss a transfer with [h]is insurance carrier. I have the fullest
confidence in Dr. Smith’s surgical skills and am equally confident
that, after appropriate postoperative convalescence rehab, David
will be able to resume a normal lifestyle and his usual activities,
perhaps with the exception of working overhead. I wish David the
best and I hope he will do very well. I appreciate the opportunity
to participate in his care - he’s been a most pleasant and
cooperative patient. Our thanks, as well, to Dr. Smith for his help.
Dr. Wood issued claimant a work-restriction slip excusing him from work “pending [his] return
appt. with Dr. Ken Smith.”
Claimant testified that, when he saw Dr. Wood on January 24, 2003, they discussed
Dr. Smith’s evaluation. Claimant stated that he told Dr. Wood that “Dr. Smith was a very nice
man . . . and really explained things to [him] in details,” at which point Dr. Wood asked claimant
if he wanted to see Dr. Smith for treatment. Claimant further testified that Dr. Wood told him he
would understand if claimant would rather see Dr. Smith. According to claimant, after
discussing the fact that Dr. Smith was “twenty miles closer,” he asked Dr. Wood for a referral to
Dr. Smith and Dr. Wood said he had “no problem with it.” Claimant also testified that he sought
a referral because Dr. Wood did not explain things to him or spend much time with him and his
medical condition had worsened under Dr. Wood’s care. Claimant stated that he understood the
work-restriction slip issued by Dr. Wood on January 24, 2003, referencing his “return appt. with
Dr. Ken Smith” to be a “written referral” to Dr. Smith and that his rehabilitation case manager
set up an appointment for him to have surgery with Dr. Smith based on that work-restriction slip.
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On January 27, 2003, claimant filed with the commission an application to change his
treating physician from Dr. Wood to Dr. Smith.
On February 11, 2003, Dr. Wood issued another work-restriction slip stating that,
although surgery had been recommended and claimant had been made aware of Dr. Wood’s
availability to schedule that surgery, claimant did not wish to schedule surgery with Dr. Wood.
On March 5, 2003, employer filed with the commission an application for suspension of
claimant’s benefits, alleging claimant had unjustifiably refused prescribed medical treatment.
On April 9, 2003, D. Scott Steffey, a nurse practitioner in Dr. Smith’s office, wrote in a
“To Whom It May Concern” letter that claimant scheduled the recommended surgery with
Dr. Smith, but, prior to the surgery, notified Dr. Smith that his insurance carrier would not
authorize Dr. Smith “to perform the surgery, because Dr. Wood made the referral for a second
opinion” only. Steffey further noted that claimant expressed “concerns about letting Dr. Wood
repeat a surgical procedure” and that the efforts of Dr. Smith’s office to resolve the problem
were unsuccessful.
Claimant returned to Dr. Wood’s office on May 2, 2003. Regarding that visit, Dr. Wood
noted as follows:
David was last seen in January. He was suffering from a
recurrent C6 disc. At that time, he left our care, with the
understanding that he and his rehab nurse had arranged for him to
be cared for by Dr. Ken Smith. Apparently that did not happen
because the insurance carrier would not approve the transfer. The
patient states his benefits have since been terminated.
This is all surprising to me, and I think this whole terrible
evolution can be attributed to the patient’s medical decisions being
made for him by parties other than his physicians. . . .
* * * * * * *
I strongly feel he should undergo a repeat thoracic and
cervical myelogram. I’ve prescribed some medication. I’ll be
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happy to treat this gentleman if he has trust in me and wishes to see
me.
At the time I saw him last, he and his rehab nurse had
reportedly arranged that he be treated by Dr. Smith. I’ll be happy
to see him again at any time.
Responding to written questions posed by counsel, Dr. Wood indicated, on May 6, 2003,
that he did not “refer Mr. Parsons to Dr. Ken Smith for continuing treatment,” and indicated, on
May 7, 2003, that he would not “defer Mr. Parson[’]s treatment related to his July 17, 2002
injury to Dr. Ken Smith.”
On May 12, 2003, the deputy commissioner conducted an evidentiary hearing on the
parties’ applications. By opinion dated June 18, 2003, the deputy commissioner denied
claimant’s request for a change in treating physicians and suspended claimant’s benefits for his
unjustified refusal of medical treatment.
By opinion dated October 31, 2003, a majority of the full commission reversed the
deputy commissioner’s decisions. Finding claimant was “entitled to change physicians from
Dr. Wood to Dr. Smith” because Dr. Wood referred claimant “to Dr. Smith for further treatment
including surgery,” the commission granted claimant’s request for a change of treating
physicians. Further finding that claimant had not unjustifiably refused treatment from Dr. Wood,
the commission denied employer’s request for suspension of benefits.
This appeal followed.
II. ANALYSIS
On appeal, employer contends solely that the commission erred in granting claimant’s
request for a change of treating physicians and denying employer’s request for suspension of
benefits because no credible evidence supports the commission’s findings that (1) claimant was
entitled to change his treating physician and (2) claimant did not unjustifiably refuse medical
treatment. Employer conceded at oral argument in this appeal that his second claim regarding
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claimant’s refusal of medical treatment is moot if we determine there is credible evidence to
support the commission’s finding that Dr. Wood referred claimant to Dr. Smith.
“On appeal, we view the evidence in the light most favorable to the party prevailing
below. If supported by credible evidence, the factual findings of the commission are binding on
appeal.” Tomes v. James City Fire, 39 Va. App. 424, 429-30, 573 S.E.2d 312, 315 (2002)
(citation omitted); see also Code § 65.2-706(A). This is so “even though there is evidence in the
record to support a contrary finding.” Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va. App.
276, 279, 348 S.E.2d 876, 877 (1986). “This rule applies when an expert’s opinion contains
internal conflicts.” Greif Companies/Genesco, Inc. v. Hensley, 22 Va. App. 546, 552, 471
S.E.2d 803, 806 (1996). “In determining whether credible evidence exists, the appellate court
does not retry the facts, reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses.” Wagner Enters., Inc. v. Brooks, 12 Va. App.
890, 894, 407 S.E.2d 32, 35 (1991). Indeed, “[m]atters of weight and preponderance of the
evidence, and the resolution of conflicting inferences fairly deducible from the evidence, are
within the prerogative of the commission and are conclusive and binding on the Court of
Appeals.” Kim v. Sportswear, 10 Va. App. 460, 465, 393 S.E.2d 418, 421 (1990) (citation
omitted).
It is well settled that, “absent a referral from the authorized treating physician, the
employee may generally not change treating physicians except by permission from the
commission or the employer.” Biafore v. Kitchin Equip. Co. of Virginia, 18 Va. App. 474, 479,
445 S.E.2d 496, 498 (1994) (emphasis added). In other words, a claimant may change treating
physicians if the authorized treating physician transfers care of the claimant to another physician.
See Breckenridge v. Marval Poultry Co., 228 Va. 191, 194, 319 S.E.2d 769, 770-71 (1984)
(“[O]nce [the selection of a treating physician] is made[,] the employee is not at liberty to change
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therefrom unless referred by said physician, confronted with an emergency, or given permission
by the employer and/or its insurer or [the] Commission.”).
Here, the commission found that Dr. Wood referred claimant’s continuing care and
treatment to Dr. Smith. We conclude that portions of the medical record, coupled with
claimant’s testimony, constitute credible evidence to support the commission’s factual finding.
The medical record and claimant’s testimony reflect that Dr. Wood initially referred
claimant to Dr. Smith only for a second opinion. However, upon discussing Dr. Smith’s
evaluation with claimant on January 24, 2003, Dr. Wood learned that claimant preferred to be
treated by Dr. Smith, due, among other reasons, to Dr. Smith’s more convenient location.
Dr. Wood told claimant he had “no problem with” Dr. Smith treating claimant. Dr. Wood
expressed confidence in the care Dr. Smith would provide claimant and noted that claimant’s
rehabilitation case manager would inform employer of the referral. In anticipation of the
expected “transfer” of claimant’s treatment and care to Dr. Smith, Dr. Wood further noted: “I
wish David the best and I hope he will do very well. I appreciate the opportunity to participate in
his care - he’s been a most pleasant and cooperative patient.” Dr. Wood then gave claimant a
work-restriction slip excusing him from work pending further treatment by Dr. Smith. When
Dr. Wood saw claimant on May 2, 2003, he noted:
David was last seen in January. . . . At that time, he left our
care, with the understanding that he and his rehab nurse had
arranged for him to be cared for by Dr. Ken Smith. Apparently
that did not happen because the insurance carrier would not
approve the transfer.
Expressing his surprise, Dr. Wood attributed claimant’s “terrible” situation to the fact that
claimant’s “medical decisions [were] being made for him by parties other than his physicians.”
The commission reasonably concluded from this evidence that Dr. Wood intended to and
did, in fact, refer claimant to Dr. Smith for continuing care and treatment. Because there is
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credible evidence in the record to support the commission’s finding, the fact that there is also
contrary evidence in the record from Dr. Wood that he did not refer claimant to Dr. Smith for
continuing treatment “is of no consequence.” Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991).
Having found that credible evidence supports the commission’s factual finding that
Dr. Wood referred claimant to Dr. Smith, we are bound by that finding on appeal. See Tomes,
39 Va. App. at 430, 573 S.E.2d at 315. We hold, therefore, that, claimant’s authorized treating
physician having transferred claimant’s care and treatment to Dr. Smith, the commission did not
err in finding claimant was entitled to change treating physicians from Dr. Wood to Dr. Smith.
Furthermore, as employer concedes, our determination that credible evidence supports
the commission’s finding that Dr. Wood referred claimant to Dr. Smith renders moot employer’s
claim that claimant unjustifiably refused medical treatment. Having been validly referred by
Dr. Wood to Dr. Smith, claimant sought the recommended treatment from Dr. Smith, his new
treating physician. However, that treatment was wrongly thwarted by employer, who was
precluded from interfering in the transfer of claimant’s care. See Jensen Press v. Ale, 1 Va. App.
153, 158, 336 S.E.2d 522, 525 (1985) (holding that the “[m]edical management of the claimant is
to be directed by the treating physician, not by an employer’s representative”). Having
improperly prevented claimant from obtaining the recommended medical treatment from his
treating physician, employer will not now be heard to complain that claimant unjustifiably
refused that medical treatment. Accordingly, we hold that the commission did not err in denying
employer’s application to suspend compensation for claimant’s unjustified refusal of medical
treatment.
For these reasons, we affirm the commission’s decision.
Affirmed.
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