Cox Cable Hampton Roads v. James Bowman ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
COX CABLE HAMPTON ROADS
AND
BIRMINGHAM FIRE INSURANCE MEMORANDUM OPINION *
COMPANY OF PENNSYLVANIA PER CURIAM
JULY 8, 1997
v. Record No. 0329-97-1
JAMES BOWMAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Susan B. Potter; Vandeventer, Black,
Meredith & Martin, on brief), for appellants.
(M. Todd Gerber; Joynes & Bieber, on brief),
for appellee.
Cox Cable Hampton Roads (employer) contends that the
Workers' Compensation Commission (commission) erred in refusing
to order a change in James Bowman's treating physician. 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. Rule 5A:27.
Code § 65.2-603 provides that an employer must furnish an
injured employee reasonable and necessary medical treatment free
of charge. The commission is authorized to order a change in
treating physicians. See Code § 65.2-603. However, the
commission found that the evidence failed to demonstrate a need
to change Bowman's treating physician.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground
of change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570,
572 (1986)). The commission has previously set forth several
grounds upon which it will order a change in an employee's
treating physician:
inadequate treatment is being rendered; it
appears that treatment is needed by a
specialist in a particular field and is not
being provided; no progress being made in
improvement of the employee's health
condition without any adequate explanation;
conventional modalities of treatment are not
being used; no plan for treatment for
long-term disability cases; and failure to
cooperate with discovery proceedings ordered
by the Commission.
Powers v. J.B. Constr., 68 O.I.C. 208, 211 (1989) (construing
Code § 65.1-88 (now Code § 65.2-603)).
The commission's construction of the Act is entitled to
great weight on appeal. See City of Waynesboro v. Harter, 1 Va.
App. 265, 269, 337 S.E.2d 901, 903 (1985). In addition, the
commission's finding is binding and conclusive upon us, unless,
as a matter of law, the employer's evidence sustained its burden
of proof. See Tomko v. Michael's Plastering Co., 210 Va. 697,
699, 173 S.E.2d 833, 835 (1970).
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On appeal, we view 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).
Viewing the evidence in that light, we are unable to conclude, as
a matter of law, that the employer sustained its burden of proof.
To the contrary, the evidence showed that Dr. Long has rendered
adequate treatment; he has provided Bowman with various treatment
options; and he adequately explained Bowman's lack of progress in
light of the complexity of his back problem. No evidence proved
that Dr. Long refused to cooperate with employer's discovery
requests or that he failed to use conventional modalities of
treatment. In addition, although Dr. Long opined that Bowman
might benefit functionally from a special physiatrist's program,
he admitted that such a program would probably not relieve
Bowman's severe pain, the overriding obstacle preventing his
return to work.
Dr. Long opined that Bowman is restricted from working due
to his intractable pain and recommended that Bowman limit his
activities to those that are tolerable. Dr. Long also opined
that Bowman's condition will probably remain the same and
concurred with the opinion of Dr. Bruce Mathern, who examined
Bowman at employer's request, that because of Bowman's structural
instability, external bracing and physical therapy would probably
not improve his condition. Dr. Mathern encouraged Bowman to
maintain his "longstanding relationship with Johns Hopkins" and
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Dr. Long.
For these reasons, we affirm the commission's decision.
Affirmed.
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