Judith Brown Macica v. ARA Services Tidewater, etal , 26 Va. App. 36 ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
JUDITH BROWN MACICA
OPINION BY
v. Record No. 2111-96-1 JUDGE JOSEPH E. BAKER
NOVEMBER 10, 1997
ARA SERVICES TIDEWATER VENDING
and
RELIANCE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ralph E. Lawrence for appellant.
Arthur T. Aylward (Midkiff & Hiner, P.C., on
brief), for appellees.
Judith Brown Macica (claimant) appeals from a decision of
the Virginia Workers' Compensation Commission (commission) that
denied her request for Dr. Arthur R. Sonberg to be designated as
her treating physician for her on-the-job injuries sustained on
August 8, 1989 while in the employ of ARA Services Tidewater
Vending. ARA Services Tidewater Vending and Reliance Insurance
Company (jointly referred to herein as ARA) cross-appeal from the
commission's findings that (1) claimant had cured her earlier
refusal to follow the treatment recommendations of her already
designated treating physician, Nathan D. Zasler, and (2)
claimant's refusal to select a new panel physician during the
pendency of her request to change treating physicians did not
constitute a refusal of medical treatment under Code
§ 65.2-603(B). Finding no error, we affirm the commission's
decision.
Although claimant may have misunderstood some of Dr.
Zasler's recommendations for treatment, the applicable facts are
not in dispute. Those facts are here stated in the light most
favorable to the party prevailing on the issues from which this
appeal emanates. See States Roofing Corp. v. Bush Constr. Corp.,
15 Va. App. 613, 616, 426 S.E.2d 124, 126 (1993).
Claimant sustained injuries in a fall on August 8, 1989, and
ARA accepted those injuries as compensable. Claimant came under
the care of Dr. James Allen, who performed cervical discectomy
and fusion surgery in August 1989. Although claimant's condition
improved after the surgery, she continued to complain of neck
pain and other ailments. Thereafter, Dr. Allen declined to treat
claimant further, and she eventually saw Dr. Zasler, who
initially supported her inability to work. Later, Dr. Zasler
concluded that claimant's complaints might be due to "significant
psychoemotional factors effecting physical symptoms." Dr.
Zasler's December 16, 1994 progress notes disclosed a plan to
refer claimant for (1) a neurosurgical opinion, (2)
neuropsychological testing, and (3) psychiatric consultation.
Claimant was seen by the neurosurgeon, but failed to
complete the neuropsychological testing or psychiatric
consultation. On March 27, 1995, by letter to claimant, Dr.
Zasler indicated his intent to withdraw as her treating physician
effective May 1, 1995, based upon her "inability to follow up
with what [Zasler] consider[ed] medically necessary care." He
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recommended that she continue under the care of a doctor, but
deferred the choice of physician to ARA.
Claimant's attendance at the initial neuropsychological
testing sessions with Dr. Karen Haskett was "sporadic" and
hindered by her claim of tiring easily. However, after she and
her husband were informed on March 24, 1995 of the importance of
her timely completion of the testing and the fact that she would
be charged for future missed visits, "her attendance . . . was
'fairly good' except for March 30, 1995, when [claimant's]
granddaughter was born." Testing was completed after additional
sessions on March 28, 29, and 31, April 5, 10, and 19, and May 3,
1995.
In regard to Dr. Zasler's recommended psychiatric
evaluation, claimant testified that she and her husband tried to
schedule an appointment with Dr. Yaacov Pushkin beginning in
March 1995. Her evidence indicated that Dr. Pushkin's office
would not schedule an appointment until claimant had spoken
directly with Dr. Pushkin, which occurred on April 5, 1995.
Claimant's appointment, initially set for May 5, 1995, was
postponed several times due to no fault of claimant's, and her
psychiatric evaluation was completed on July 27, 1995.
On March 29, 1995, ARA filed an application for hearing,
asserting that claimant had refused the treatment recommended by
Dr. Zasler in December 1994. At the time, as set forth above,
claimant had not scheduled a psychiatric appointment and had not
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completed neuropsychological testing. Claimant opposed ARA's
request for hearing, advised the commission that Dr. Zasler had
withdrawn as claimant's physician, and requested that the
commission designate Dr. Sonberg as her treating physician.
Claimant saw Dr. Sonberg beginning December 27, 1994. Copies of
his reports on claimant's condition were forwarded to the
commission along with her request. In the letter to the
commission, claimant advised that Dr. Zasler had directed that
the three specialists be seen in sequence. Dr. Zasler denied
that he had given that direction.
Upon receipt of a copy of Dr. Zasler's letter of withdrawal,
ARA prepared a panel of three new treating physicians from which
claimant could choose. Dr. Sonberg was not one of the three, and
by letter of May 17, 1995, claimant refused to select from the
panel. On August 4, 1995, ARA filed an additional claim that
claimant's refusal to select a new panel physician constituted
refusal of medical treatment. Claimant countered with a request
for payment for Dr. Sonberg's services.
After a hearing, the commission affirmed the deputy's
finding that as of March 29, 1995, claimant cured her refusal to
follow Dr. Zasler's recommendations and that filing the request
to have Dr. Sonberg designated as her treating physician rather
than choosing a new panel physician was not a refusal of medical
treatment. However, the commission declined to designate Dr.
Sonberg as her treating physician and directed ARA to again offer
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the panel of physicians previously tendered to claimant.
"On appellate review, we must construe the evidence in the
light most favorable to the party prevailing below." States
Roofing Corp., 15 Va. App. at 616, 426 S.E.2d at 126. "If there
is evidence, or reasonable inferences can be drawn from the
evidence, to support the Commission's findings, they will not be
disturbed on review, 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).
"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).
In the event of a compensable work related
injury, Code § [65.2-603] provides that the
employer shall furnish free of charge to the
employee a physician of his choice from a
panel of at least three physicians and the
attendant medical costs. If no panel of
physicians is offered to the employee, he or
she is free to select his [or her] own
physician.
Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App. 120, 128, 384
S.E.2d 333, 337-38 (1989) (decided under former Code § 65.1-88).
However, once the selection is made, the employee may not seek
the treatment of another physician "'unless referred by [the
first] physician, confronted with an emergency, or given
permission by the employer and/or its insurer or [the]
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Commission.'" Davis v. Brown & Williamson Tobacco Co., 3 Va.
App. 123, 126, 348 S.E.2d 420, 421 (1986) (quoting Breckenridge
v. Marval Poultry Co., 228 Va. 191, 194, 319 S.E.2d 769, 770-71
(1984)) (decided under former Code § 65.1-88).
Here, ARA had offered a second panel of three physicians
from which claimant could choose a new treating physician. ARA
thereby complied with the requirements of Code § 65.2-603.
Claimant was not referred to Dr. Sonberg by the treating
physician and was not shown to have been confronted with an
emergency or given permission by the employer, its insurer, or
the commission to change treating physicians; therefore, we
cannot say that the commission erred when it denied claimant's
request to have Dr. Sonberg designated as her treating physician.
See Davis, 3 Va. App. at 126, 348 S.E.2d at 421.
The commission further found that claimant's actions after
March 24, 1995 demonstrated an effort to follow Dr. Zasler's
instructions and that, even if claimant previously had refused to
follow his instructions, refusal was cured. Evidence in the
record supports that decision. "Where reasonable inferences may
be drawn from the evidence in support of the commission's factual
findings, [those findings] will not be disturbed by this Court on
appeal." Hawks v. Henrico Co. Sch. Bd., 7 Va. App. 398, 404, 374
S.E.2d 695, 698 (1988).
In addition, the commission found that the mere filing of a
petition to have another doctor become the treating physician,
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and claimant's corresponding refusal to select a new panel
physician during the pendency of that petition, were not per se a
refusal of medical treatment justifying the suspension of
benefits under Code § 65.2-603(B). Under the facts contained in
this record, we cannot say that finding is reversible error as a
matter of law.
For the reasons stated, the decision of the commission is
affirmed.
Affirmed.
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