Shawnee Management Corp. v. Rhonda Hamilton , 25 Va. App. 672 ( 1997 )


Menu:
  •                      COURT OF APPEALS OF VIRGINIA
    Present:  Chief Judge Moon, Judges Baker, Benton, Coleman, Elder,
    Bray, Fitzpatrick and Overton
    Argued at Richmond, Virginia
    SHAWNEE MANAGEMENT CORPORATION AND
    LIBERTY MUTUAL INSURANCE COMPANY
    OPINION BY
    v.   Record No. 0434-96-3                 JUDGE LARRY G. ELDER
    NOVEMBER 4, 1997
    RHONDA C. HAMILTON
    UPON A REHEARING EN BANC
    FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
    J. David Griffin (Fowler, Griffin, Coyne &
    Coyne, P.C., on brief), for appellants.
    George L. Townsend (Chandler, Franklin &
    O'Bryan, on brief), for appellee.
    Shawnee Management Corporation (employer) appeals an order
    of the Workers' Compensation Commission awarding temporary total
    disability benefits to Rhonda C. Hamilton (claimant).   Employer
    contends that the commission erred when it concluded that
    claimant's failure to entirely cease smoking cigarettes so that
    she could undergo back surgery was not a "refusal" of medical
    care under Code § 65.1-603(B).    Employer also contends that the
    commission erred when it concluded that claimant justifiably
    refused an offer of selective employment.    A panel of this Court
    reversed the commission's award, holding that claimant's failure
    to stop smoking completely as directed by her physicians was an
    unjustified refusal of the back surgery she needed in order to
    return to work.   See Shawnee Management Corp. v. Hamilton, 24 Va.
    App. 151, 
    480 S.E.2d 773
     (1997).    We granted claimant a rehearing
    en banc.    For the reasons that follow, we affirm the commission's
    award of benefits.
    I.
    FACTS
    In October, 1991, claimant lived in Winchester, Virginia and
    was employed as a crew person at a Hardee's Restaurant managed by
    employer.   Claimant slipped on a wet floor in the restaurant and
    injured her back.    The parties entered into a memorandum of
    agreement for temporary total disability benefits.    At the time
    of her accident, claimant had smoked cigarettes regularly for
    twenty years.
    In January, 1993, claimant's treating physician, Dr. Zoller,
    performed a "lumbar fusion" operation on claimant to treat her
    back injury.    Upon admission to the hospital for the surgery,
    claimant ceased smoking cigarettes entirely and maintained her
    abstinence from smoking for about eighteen months.    About two
    months after her surgery, claimant moved from Winchester to
    Manassas, Virginia.
    Claimant's recovery from the back surgery was not smooth.
    During the surgery, she suffered "fairly significant
    brachioplexus injuries" to both of her arms due to the
    positioning of her body during the procedure.    Her recovery from
    these injuries took several months.     In addition, while
    rehabilitating her back, claimant experienced intermittent but
    severe pain in her back, buttocks, and legs.
    -2-
    On July 20, 1993, Dr. Zoller wrote to employer's insurer
    that claimant "could be returned to some light duty work."    Dr.
    Zoller set forth numerous restrictions on any work performed by
    claimant, including a limit on claimant's driving to "20 miles,
    or 30 minutes, continuously, and no more than twice daily."     On
    August 11, employer sent a job description to Dr. Zoller
    regarding a position it planned to offer claimant as a cashier at
    a Hardee's Restaurant in Winchester.   The job description
    included several accommodations to match the restrictions on
    claimant's work imposed by Dr. Zoller.   Dr. Zoller approved the
    job description on August 25.   On September 9, claimant declined
    employer's offer to return to work in the modified cashier's
    position because it required a 90 minute commute each way from
    Manassas to Winchester.
    On September 13, 1993, employer filed an application for a
    hearing to suspend claimant's disability benefits on the ground
    that she had "refused selective employment within [her] physical
    capacity."   The commission subsequently suspended claimant's
    benefits, but it did so on the ground that claimant had failed to
    keep it informed of her current mailing address.
    In December, 1993, claimant moved back to Winchester.
    Sometime in mid-1994, she resumed smoking cigarettes to "calm her
    nerves" when her son "got in trouble."   Her consumption of
    cigarettes increased to two packs per day.
    On September 26, 1994, Dr. Zoller wrote that claimant
    -3-
    continued to experience pain in her back and right leg and that
    he had exhausted nearly all non-surgical options to treat her
    pain.    He referred claimant to Dr. Kostuik at the Johns Hopkins
    Orthopaedic Center in Baltimore, Maryland for a second opinion.
    On December 8, Dr. Kostuik examined claimant, concluded that
    she had "a nonunion of her fusion," and opined that she might
    benefit from an "anterior innerbody fusion."    Dr. Kostuik gave
    claimant "a good prognosis for recovery" if she underwent the
    proposed operation.    However, Dr. Kostuik told claimant that "she
    has to stop smoking and try to [lose] some weight" before he
    would perform the surgery.
    On December 19, Dr. Zoller examined claimant and concurred
    with Dr. Kostuik's opinion that an anterior innerbody fusion was
    "appropriate" treatment.    Like Dr. Kostuik, Dr. Zoller told
    claimant that quitting smoking "altogether" was a precondition of
    the proposed operation.    When Dr. Zoller saw claimant again on
    February 22, 1995, claimant stated that she was still smoking
    cigarettes but that her consumption was "down to about 10
    cigarettes a day."
    On January 3, 1995, Dr. Zoller wrote to employer's insurer
    that he had reconsidered his earlier opinion that claimant was
    capable of light duty work. He stated:
    I sent [claimant] back to work on July 20,
    1993 assuming that possibly work would help
    improve things, but this was probably a
    mistake, and I think, in retrospect, it
    probably would have been more worthwhile to
    keep her on with Off-Work from that time
    until the present time.
    -4-
    *    *   *    *    *   *   *
    I feel that [claimant] should be
    considered off work the entire period of
    time, never having been allowed to go back to
    work.
    On February 6, 1995, claimant filed a claim with the
    commission for temporary total disability benefits beginning on
    September 14, 1993, the day after the suspension date of her
    earlier award.   She alleged a change in condition and cited Dr.
    Zoller's revised medical opinion that she "shouldn't have been
    released to go back to work."     Employer raised several defenses,
    including that claimant had unjustifiably refused medical
    treatment by failing to quit smoking and that claimant had
    refused selective employment in September, 1993.
    On June 8, 1995, a deputy commissioner held a hearing on
    claimant's claim.   At the hearing, claimant testified that since
    Dr. Kostuik informed her that she must quit smoking, she had
    reduced her consumption of cigarettes from two packs per day to
    "about a quarter" pack per day.    She testified that she was
    "still continuing to try and stop altogether."      There was no
    evidence in the record that employer had ever offered or that
    claimant had refused any medical treatment to assist her personal
    effort to stop smoking.
    The deputy commissioner denied claimant's claim.      The deputy
    commissioner first held that Dr. Zoller's revised medical opinion
    that claimant's disability had always been "total" constituted a
    -5-
    change in condition.   However, the deputy commissioner also held
    that claimant's failure to cease smoking entirely was an
    unjustified refusal of the anterior innerbody fusion recommended
    by both Dr. Kostuik and Dr. Zoller.
    Claimant appealed, and the commission reversed.    The
    commission held that claimant's failure to stop smoking was not a
    "refusal" of the proposed back surgery. It reasoned:
    The evidence in this case shows no such
    conscious or willful refusal [by claimant] to
    follow the treatment recommendations of her
    physicians regarding smoking. Rather, the
    evidence shows that the claimant has reduced
    her smoking habit by approximately 75%,
    without the aid of any prescribed medical or
    psychological programs, which we find
    demonstrates a substantial personal effort.
    . . . We are persuaded by this evidence that
    the claimant has made reasonable efforts that
    are continuing to try to end a habit . . .
    ingrained by usage over a period of
    approximately 24 years.
    The commission also held that claimant's refusal of the cashier's
    position offered to her in September, 1993, was justified because
    claimant's commute at the time would have violated the driving
    restrictions imposed by Dr. Zoller.    The commission entered an
    award of temporary total disability benefits in favor of claimant
    retroactive to December 19, 1994, the date of the examination
    that prompted Dr. Zoller to revise his medical opinion.
    II.
    REFUSAL OF MEDICAL CARE
    Employer argues that the commission erred when it found that
    claimant had not "refused" the back surgery she needed to return
    -6-
    to work by failing to quit smoking entirely as of the date of the
    hearing.   Because credible evidence supports the commission's
    finding that claimant had not refused to stop smoking, we find no
    error.
    Code § 65.2-603(B) bars a claimant from receiving further
    compensation if the claimant unjustifiably refuses to accept
    medical services provided by the employer.   Whether or not a
    claimant has "refused" medical treatment is a question of fact.
    See Stump v. Norfolk Shipbuilding & Dry Dock Corp., 
    187 Va. 932
    ,
    934-35, 
    48 S.E.2d 209
    , 210 (1948) (treating the commission's
    determination of whether a claimant has refused medical services
    as a question of fact); see also Chesapeake Masonry Corp. v.
    Wiggington, 
    229 Va. 227
    , 229-30, 
    327 S.E.2d 121
    , 122 (1985)
    (holding that the commission's finding that the claimant
    unjustifiably refused medical care was supported by credible
    evidence and therefore binding on appeal).   It is fundamental
    that "factual findings of the commission are binding on appeal"
    if supported by credible evidence.    Spruill v. C.W. Wright
    Constr. Co., 
    8 Va. App. 330
    , 332, 
    381 S.E.2d 359
    , 360 (1989); see
    Code § 65.2-706(A).
    We do not retry the facts before the
    Commission nor do we review the weight,
    preponderance of the evidence, or the
    credibility of witnesses. If there is
    evidence or reasonable inference that can be
    drawn from the evidence to support the
    Commission's findings, they will not be
    disturbed by this Court on appeal, even
    though there is evidence in the record to
    support contrary findings of fact.
    -7-
    Caskey v. Dan River Mills, Inc., 
    225 Va. 405
    , 411, 
    302 S.E.2d 507
    , 510-11 (1983).
    We hold that the evidence was sufficient to support the
    commission's finding that claimant's current unsuccessful attempt
    to quit smoking was not a "conscious or willful refusal to follow
    the treatment recommendations of her physicians regarding
    smoking."   Viewing the evidence in the light most favorable to
    claimant, the prevailing party below, see R.G. Moore Bldg. Corp.
    v. Mullins, 
    10 Va. App. 211
    , 212, 
    390 S.E.2d 788
    , 788 (1990), the
    evidence proves that claimant was in the midst of an ongoing,
    good faith effort to end her smoking habit at the time of the
    hearing before the deputy commissioner.   Claimant testified at
    the hearing that she had smoked cigarettes for over 23 years.
    Although she did quit smoking at the time of her first back
    surgery in January, 1993, she testified that she resumed the
    habit sometime in mid-1994.   The evidence shows that in the seven
    months between claimant's appointment with Dr. Kostuik, when she
    was first directed to quit smoking, and the hearing before the
    deputy commissioner, claimant reduced her daily consumption of
    cigarettes by about 87%.   Claimant testified that she was smoking
    two packs of cigarettes per day at the time she first saw Dr.
    Kostuik in December, 1994.    Dr. Zoller wrote in his examination
    notes on February 22, 1995 that claimant had reduced her smoking
    to ten cigarettes per day.    At the hearing on June 8, 1995,
    claimant testified that she was smoking about a quarter of a pack
    -8-
    per day and was still continuing her effort to "try and stop
    altogether."   In addition, the record fails to establish that
    claimant rejected medical treatment that would have expedited her
    complete abandonment of cigarettes or that employer offered such
    treatment.   In light of claimant's long history with cigarettes,
    the sizable reduction in her smoking, and her testimony that she
    had not abandoned her current effort to quit, credible evidence
    supports the commission's finding that claimant had not "refused"
    to comply with her physicians' directives to stop smoking.
    III.
    REFUSAL OF SELECTIVE EMPLOYMENT
    Employer also argues that claimant unjustifiably refused
    selective employment when she declined the cashier position
    offered to her in September, 1993.    See Klate Holt Co. v. Holt,
    
    229 Va. 544
    , 545, 
    331 S.E.2d 446
    , 447 (1985); Talley v. Goodwin
    Bros. Lumber Co., 
    224 Va. 48
    , 52, 
    294 S.E.2d 818
    , 820 (1982).     We
    disagree.
    Relying on Dr. Zoller's revised medical opinion, the
    commission concluded that claimant was totally disabled as of
    December 19, 1994 and ordered benefits resumed at that date.
    Based on this determination, no employment offered by employer
    could possibly be suitable for claimant because claimant has no
    residual capacity to work.
    Because the commission held that claimant is totally
    disabled, which employer does not contest on appeal, we hold that
    -9-
    this issue of selective employment is now moot.   Once a
    controversy between litigants ceases to exist, "it is the duty of
    every judicial tribunal not to proceed to the formal
    determination of the apparent controversy . . . ."     Hankins v.
    Town of Va. Beach, 
    182 Va. 642
    , 643-44, 
    29 S.E.2d 831
    , 832
    (1944).
    For the foregoing reasons, we affirm the commission's award.
    Affirmed.
    -10-
    

Document Info

Docket Number: 0434963

Citation Numbers: 25 Va. App. 672, 492 S.E.2d 456, 1997 Va. App. LEXIS 733

Judges: Moon, Baker, Benton, Coleman, Elder, Bray, Fitzpatrick, Overton

Filed Date: 11/4/1997

Precedential Status: Precedential

Modified Date: 10/19/2024