City of Norfolk v. Tammy Gray ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and O’Brien
UNPUBLISHED
Argued at Norfolk, Virginia
CITY OF NORFOLK
MEMORANDUM OPINION* BY
v. Record No. 1138-16-1 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 14, 2017
TAMMY GRAY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Karla J. Soloria; Heather A. Mullen; Office of the City Attorney,
on briefs), for appellant. Appellant submitting on briefs.
Adam B. Shall (Taylor Walker, P.C., on brief), for appellee.
The City of Norfolk (“employer”) appeals the June 9, 2016 decision of the Workers’
Compensation Commission (the “Commission”) finding employer liable to pay for surgery and
treatment of Tammy Gray’s (“Gray”) work-related injuries performed by an unauthorized
treating physician. Employer argues it should not be liable to pay for the surgery and treatment
by the new physician because Gray did not establish “adequate grounds to warrant a change in
treating physician,” and because the Commission relied on facts contrary to the evidence when it
determined that a change in Gray’s treating physician was warranted.
“In reviewing a decision of the commission, we view the evidence in the light most
favorable to claimant, the party prevailing below. ‘Decisions of the commission as to questions
of fact, if supported by credible evidence, are conclusive and binding on this Court.’” Starbucks
Coffee Co. v. Shy, 61 Va. App. 229, 238, 734 S.E.2d 638, 688 (2012) (quoting Manassas Ice &
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)). However, the Court
reviews de novo the Commission’s legal determinations. Id.
Employer first argues that there was insufficient evidence “that Dr. Skidmore[, the
authorized physician,] was providing inadequate or medically inappropriate care to [Gray] to
justify a change in authorized treating physicians.” Whether evidence was sufficient to show
that a change in treating physicians was warranted is a question of fact that will not be
overturned if supported by credible evidence. Id.
Code § 65.2-603 requires an employer to provide medical care for an employee injured
on the job. Typically, the injured employee is required to use one of the employer’s authorized
treating physicians; however Code § 65.2-603(C) makes an exception for emergency situations
and for “other good reasons.” Among the “other good reasons” exceptions are circumstances
when a claimant attains medical treatment from a physician before obtaining authorization from
the Commission to do so; in such cases, the employer will be liable to pay for treatment by the
physician
if the employee, without authorization but in good faith, obtains
medical treatment different from that provided by employer, and it
is determined that the treatment provided by the employer was
inadequate treatment for the employee’s condition and the
unauthorized treatment received by the claimant was medically
reasonable and necessary treatment, the employer should be
responsible, notwithstanding the lack of prior approval by the
employer.
Shenandoah Products, Inc. v. Whitlock, 15 Va. App. 207, 212, 421 S.E.2d 483, 486 (1992)
(analyzing the “other good reasons” exception of Code § 65.2-603). The Commission correctly
relied upon this authority when it made its decision in this case.
Here, the Commission, as the factfinder, determined that Gray sought medical treatment
from Dr. Mitchell, an unauthorized physician, in good faith. Viewed in the light most favorable
to Gray, the prevailing party below, the record supports the Commission’s conclusion. Credible
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evidence shows that Gray went to see Dr. Mitchell only after seeing Dr. Skidmore. Dr. Mitchell
treated Gray in the past and was familiar with her medical history, and had even performed a
surgery that successfully alleviated her previous neck pain; thus, it was reasonable for Gray to
believe Dr. Mitchell might have a better or more thorough insight into her spinal issues resulting
from the accident. Further, Gray did not continue seeing both Dr. Skidmore and Dr. Mitchell for
an extended period of time; instead, she saw Dr. Mitchell only twice during her seven-month
treatment with Dr. Skidmore. At multiple appointments with Dr. Skidmore, Dr. Skidmore stated
that Gray’s pain was “a bit of a mystery,” and nothing Dr. Skidmore had done by that point
significantly reduced Gray’s pain. When Gray stopped seeing Dr. Skidmore and went instead to
Dr. Mitchell, it was because she believed Dr. Skidmore did not know what was causing her pain.
Thus, the record supports the holding of the Commission that established that Gray sought out
Dr. Mitchell’s treatment in good faith.
The treatment rendered by Dr. Skidmore was clearly inadequate to treat Gray’s condition.
Dr. Skidmore stated twice that Gray’s pain was a “mystery” to him, and even after multiple
diagnostic tests he could not find an answer. Dr. Skidmore prescribed three different medication
regimens for Gray; the first two regimens were completely ineffective, and the final gave Gray
only “mild improvement.” At no point did Dr. Skidmore show any indication that he would
consider treatments other than medications. In contrast, Dr. Mitchell was familiar with Gray’s
medical history, had previously performed successful neck surgery, and indicated that another
surgery was the only option that could possibly alleviate her pain. Therefore, viewed in the light
most favorable to Gray, sufficient credible evidence established that Dr. Skidmore’s treatment
was inadequate to effectively treat Gray’s condition.
Finally, the unauthorized treatment rendered by Dr. Mitchell was reasonable and
necessary under these circumstances because no other treatment options were effective in
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reducing Gray’s pain. Her pain ranged between a seven and a ten on a scale of ten, and
medications prescribed by Dr. Skidmore gave little or no relief. Again, Dr. Mitchell, who
worked with Gray in the past regarding unrelated spinal issues, offered the only possible solution
to Gray’s back pain in this instance. A third doctor, Dr. Mathern, confirmed that no other
options were available to relieve Gray’s pain aside from surgery. Thus, the evidence was
sufficient to prove that Dr. Mitchell’s treatment was reasonable and necessary.
Since there was credible evidence to support a finding that Gray sought unauthorized
medical attention in good faith, Dr. Skidmore’s treatment was inadequate, and Dr. Mitchell’s
treatment was reasonable and necessary, we hold that the Commission did not err in holding
employer liable for payment to Dr. Mitchell. See Whitlock, 15 Va. App. at 212, 421 S.E.2d at
486.
Employer next argues that the Commission erred by considering facts contrary to the
evidence when its opinion presumed that only Dr. Mitchell was able to compare a pre- and
post-accident MRI, when in reality, both doctors were able to do so. Despite employer’s
argument, the Commission only considered facts that were contained in the record.
Both Dr. Skidmore and Dr. Mitchell were eventually able to compare a pre-accident MRI
with a post-accident MRI; however, it was only Dr. Mitchell who had any insight as to what may
be causing Gray’s pain. Dr. Mitchell, who previously performed a surgery on Gray that was
successful in relieving her pain, recommended surgery that would remove the plate he placed
during the previous surgery and perform an “anterior cervical discectomy and fusion.” Aside
from the surgery, Dr. Mitchell had no other options for Gray except to maintain the status quo.
Dr. Skidmore had approximately seven months in which to compare MRIs and come up with
possible treatment options, but he only ever prescribed medications which were not relieving
Gray’s pain. When Dr. Mitchell was able to compare a pre- and post-accident MRI, he was able
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to point to what could be causing the pain, and consequentially recommended surgery. The facts
merely presented two possible competing theories, and the Commission was not incorrect simply
because it chose one possible theory over the other. “[A] finding by the Commission upon
conflicting facts . . . is conclusive and binding . . ., absent fraud, when such determination is
supported by competent, credible evidence.” City of Portsmouth Sheriff’s Dep’t v. Clark, 30
Va. App. 545, 553, 518 S.E.2d 342, 346 (1999) (quoting C.D.S. Constr. Servs. v. Petrock, 218
Va. 1064, 1070, 243 S.E.2d 236, 240 (1978)). The evidence was sufficient to support a finding
that employer should be held liable to pay for Dr. Mitchell’s treatment of Gray. Thus, the
Commission did not consider facts contrary to the evidence and did not err in that regard.
For the foregoing reasons, we hold that the Commission did not err in finding employer
liable for Gray’s treatment by an unauthorized physician, Dr. Mitchell, and affirm its decision.
Affirmed.
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