Tracy Eugene Talbot v. Black Industries, Inc. ( 1996 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present: Judges Willis, Annunziata and Senior Judge Cole
    Argued at Richmond, Virginia
    TRACY EUGENE TALBOT
    v.   Record No. 1016-95-2                   MEMORANDUM OPINION * BY
    JUDGE MARVIN F. COLE
    BLACK INDUSTRIES, INC.                         FEBRUARY 27, 1996
    AND
    UNITED STATES FIDELITY & GUARANTY COMPANY
    FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
    Gary W. Kendall (Michie, Hamlett, Lowry,
    Rasmussen and Tweel, on brief), for
    appellant.
    Robert M. McAdam (Katherine Cabell Londos;
    Wooten & Hart, P.C., on brief), for
    appellees.
    Tracy Eugene Talbot ("claimant") appeals a decision of the
    Workers' Compensation Commission denying his June 27, 1994 change
    in condition application.   Claimant contends that the commission
    erred in (1) refusing to grant his request for a change in
    treating physicians; (2) finding that he did not prove that his
    April 14, 1994 right knee injury constituted a compensable
    consequence of his February 12, 1992 compensable back injury; and
    (3) not awarding him temporary total disability benefits on the
    ground that he did not adequately market his residual work
    capacity after March 29, 1994.   For the following reasons, we
    reverse the commission's ruling denying claimant's request for a
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    change in treating physicians and we affirm the commission's
    decision as to the remaining two issues.
    Background
    On February 12, 1992, while working for employer as a
    foreman, claimant suffered a compensable back injury.   Dr. Eric
    Korsh, an orthopedic surgeon, diagnosed degenerative disc disease
    at L4-L5 with mild spinal stenosis.   On September 7, 1993, Dr.
    Korsh performed surgery on claimant's back.   On December 20,
    1993, Dr. Korsh released claimant to return to work, noting that
    he did not comply with work hardening.   On January 13, 1994, Dr.
    Korsh recommended that claimant continue rehabilitation with Dr.
    Murray Joiner, Jr., a physical medicine and rehabilitation
    specialist.   Dr. Korsh also noted that "there is nothing further
    that I can offer him."   On January 12, 1994, Dr. Joiner released
    claimant to return to full unrestricted work.   However, on
    February 10, 1994, claimant returned to Dr. Joiner complaining of
    lower back pain.   As a result, Dr. Joiner restricted claimant
    from lifting more than seventy-five pounds.
    Claimant testified that between February 1994 and April 14,
    1994, he experienced episodes of leg numbness, which on two
    occasions caused his knee to give way and caused him to fall.
    Claimant contended that he did not tell Dr. Korsh about the leg
    numbness because Dr. Korsh refused to treat him.   On April 14,
    1994, claimant's leg went numb and he fell on his right knee
    while at home.   Claimant sought treatment for this knee injury at
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    the Memorial Hospital of Martinsville emergency room, where Dr.
    Robert P. Albanese noted that claimant had undergone back
    surgery, but that, even prior to the surgery, he had trouble with
    his legs giving out.   Dr. Albanese diagnosed a possible torn
    medial meniscus of the right knee and referred claimant to Dr.
    Peter Perry, an orthopedist.
    Dr. Perry's April 28, 1994 office notes and Attending
    Physician's Report reflect a history of a right knee injury,
    which occurred at work a few weeks earlier.   On June 7, 1994, Dr.
    Perry noted that claimant clarified his earlier history by
    stating that he had fallen at home, not at work.   On July 21,
    1994, Dr. Perry opined that he did not believe claimant's knee
    problem was directly related to claimant's back injury.   However,
    Dr. Perry stated that claimant's knee problem might be indirectly
    related to his back problem, if a giving way episode related to
    the back injury led to claimant's torn meniscus.
    On August 8, 1994, on a friend's recommendation, claimant
    sought treatment from Dr. Hallett H. Mathews in Richmond,
    Virginia, a three-hundred mile round trip from claimant's home.
    On August 22, 1994, Dr. Mathews noted that, if claimant's back
    and leg symptoms did not improve with conservative treatment, he
    might be a candidate for further surgery.   On October 12, 1994,
    Dr. Mathews opined that claimant was unable to perform heavy
    manual labor.   Dr. Mathews restricted claimant from lifting more
    than twenty pounds and advised him to avoid frequent bending,
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    twisting, and sitting for extended periods of time.   Dr. Mathews
    also stated that claimant could not return to his pre-injury work
    with employer unless these restrictions applied.
    On October 21, 1994, employer notified claimant's counsel
    that it did not accept Dr. Mathews as the treating physician and
    offered claimant a new panel of physicians, consisting of Drs.
    Strong, Crickenberger, and Stevens.   Claimant called Drs.
    Crickenberger and Stevens, both of whom refused to treat him.
    Thereafter, employer substituted Dr. Perry for Dr. Crickenberger.
    Claimant agreed to accept Dr. Perry as his treating physician.
    However, Dr. Perry declined to accept claimant as a patient, so
    claimant requested a referral to another doctor.   When Dr. Perry
    told claimant he should return to Dr. Korsh and obtain a referral
    to Dr. Mathews, claimant stated that Dr. Korsh would not see him
    and asked Dr. Perry to refer him to Dr. Mathews.   On December 12,
    1994, Dr. Perry wrote that claimant should return to Dr. Mathews
    since claimant had seen Dr. Mathews before.   Claimant testified
    that his attorneys were pursuing a medical malpractice action
    against Dr. Korsh.   However, claimant did not know whether a
    lawsuit had been filed on his behalf against Dr. Korsh.
    Claimant testified that between February 1994 and August 15,
    1994, he looked for work and registered with the Virginia
    Employment Commission ("VEC").   He also stated that he called
    potential employers between two and four times per week during
    this time period.    In response to employer's Interrogatory
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    number 4, which was admitted into evidence, claimant provided the
    names of nine potential employers he contacted between
    February 12, 1992 and August 15, 1994.     Claimant did not set
    forth the date of the job contacts, the specific jobs, or whether
    he filled out   applications in either his testimony or his
    interrogatory answer.
    I.    Change in Treating Physicians
    The commission denied claimant's request for a change in
    treating physicians on the ground that he failed to prove that
    Dr. Korsh's treatment was inadequate or that Dr. Korsh abandoned
    claimant as a patient.
    "Whether a treating physician has released or abandoned his
    patient most often is determined by the express intent of the
    physician.    Some situations may require analysis of the total
    circumstances to determine whether discharge, release or
    abandonment of a patient was intended."      Jensen Press v. Ale, 
    1 Va. App. 153
    , 157, 
    336 S.E.2d 522
    , 524 (1985).     Here, the
    uncontradicted evidence in the record shows that, as of
    January 13, 1994, Dr. Korsh had nothing further to offer
    claimant.    The evidence also shows that, in October 1994,
    employer offered claimant a new panel of physicians consisting of
    Drs. Strong, Stevens, and Crickenberger.     Employer's October 1994
    offer of a new panel effectively removed Dr. Korsh from treating
    physician status.      Therefore, employer waived its right to insist
    that claimant return to Dr. Korsh.      Moreover, because the panel
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    physicians offered to claimant by employer refused to treat him,
    employer should have offered claimant another panel of physicians
    willing and able to treat him.    Accordingly, we reverse the
    commission's ruling requiring claimant to return to Dr. Korsh and
    remand this case for the commission to enter an order requiring
    employer to offer claimant a new panel of physicians.
    II.   Right Knee Injury
    On appeal, we view the evidence in the light most favorable
    to the prevailing party below.    R.G. Moore Bldg. Corp. v.
    Mullins, 
    10 Va. App. 211
    , 212, 
    390 S.E.2d 788
    , 788 (1990).
    "[W]here a causal connection between the initial compensable
    injury and the subsequent injury is established, the doctrine of
    compensable consequences extends the coverage of the . . . Act to
    the subsequent injury because the subsequent injury 'is treated
    as if it occurred in the course of and arising out of the . . .
    employment.'"    Bartholow Drywall Co. v. Hill, 
    12 Va. App. 790
    ,
    794, 
    407 S.E.2d 1
    , 3 (1991) (quoting Leonard v. Arnold, 
    218 Va. 210
    , 214, 
    237 S.E.2d 97
    , 100 (1977)).    Unless we can say as a
    matter of law that claimant's evidence sustained his burden of
    proof, the commission's findings are binding and conclusive upon
    us.   Tomko v. Michael's Plastering Co., 
    210 Va. 697
    , 699, 
    173 S.E.2d 833
    , 835 (1970).
    The commission found that claimant's right knee injury did
    not qualify as a compensable consequence of his February 12, 1992
    back injury.    In so ruling, the commission found that claimant
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    failed to prove that his leg numbness, which he claimed led to
    his right knee injury, was caused by his compensable back injury.
    Although claimant testified that he experienced leg numbness
    and giving out after his September 1993 surgery, the
    contemporaneous medical records of Drs. Korsh and Joiner for the
    time following claimant's surgery did not support his testimony.
    Moreover, in April 1994, claimant told Dr. Albanese that he had
    trouble with his legs giving out even before his back surgery.
    Based upon this evidence, the commission, in its role as fact
    finder, was entitled to give little weight to Dr. Perry's
    July 21, 1994 opinion on causation, which was premised upon the
    leg weakness arising after the back surgery.      Finally, the
    medical records show that claimant first complained of right knee
    pain on April 3, 1994, eleven days before his alleged fall.
    Based upon this record, the commission did not err in ruling
    that claimant's evidence did not prove a causal relationship
    between his compensable back injury and his alleged episodes of
    his leg numbness and his knee giving way.   Accordingly, we cannot
    find as a matter of law that he met his burden of proving a
    compensable consequence.
    III.    Marketing/Disability
    "In determining whether a claimant has made a reasonable
    effort to market his remaining work capacity, we view the
    evidence in the light most favorable to . . . the prevailing
    party before the commission. . . ."   National Linen Serv. v.
    7
    McGuinn, 
    8 Va. App. 267
    , 270, 
    380 S.E.2d 31
    , 32 (1989).   A
    claimant still has the burden of proving his entitlement to
    benefits, and to do that he has the burden of proving that he
    made a reasonable effort to procure suitable work but was unable
    to market his remaining work capacity.   Great Atl. & Pac. Tea Co.
    v. Bateman, 
    4 Va. App. 459
    , 464, 
    359 S.E.2d 98
    , 100 (1987).
    The uncontradicted medical evidence proved that Dr. Joiner
    released claimant to return to light-duty work on February 10,
    1994, with a restriction against lifting more than seventy-five
    pounds.   Based upon claimant's failure to produce the names of
    potential employers he contacted, the date of such inquiries, the
    positions inquired about, and the dates of any applications he
    completed, we cannot find as a matter of law that he met his
    burden of proving he adequately marketed his residual work
    capacity after March 29, 1994.
    Moreover, claimant's testimony that he applied with the VEC
    and that he called two to four potential employers per week
    conflicted with his interrogatory answer, which listed only nine
    employer contacts between February 12, 1992 and August 15, 1994.
    Accordingly, the commission, as fact finder, was entitled to
    give little weight to claimant's testimony.
    For the reasons stated, we reverse the commission's ruling
    ordering that claimant return to Dr. Korsh.   The commission is
    directed to enter an order requiring employer to offer claimant a
    new panel of physicians willing and able to treat him, from which
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    he can select a treating physician.   We affirm the commission's
    decision as to the remaining two issues.
    Affirmed in part,
    reversed and remanded in part.
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