Maria Emigdia Turpin v. Fairfax County School Bd. ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
MARIA EMIGDIA TURPIN
MEMORANDUM * OPINION BY
v. Record No. 2933-98-4 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 2, 1999
FAIRFAX COUNTY SCHOOL BOARD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Maria Emigdia Turpin, pro se, on brief).
Appellant submitting on brief.
(Michael N. Salveson; Hunton & Williams, on
brief), for appellee. Appellee submitting
on brief.
Maria Emigdia Turpin ("appellant") appeals the decision of
the Workers' Compensation Commission ("commission"), denying her
application for a change in her treating physicians, and
directing her to select a treating physician from the last panel
offered by the appellee, the Fairfax County School Board. On
appeal, the appellant presents several issues for review that
may be distilled as follows: 1) whether the appellant was
abandoned by her physician, William S. Berman, M.D.; and
2) whether the commission erred in refusing to consider the
legal arguments prepared on behalf of the appellant by her
non-attorney husband, Charles Turpin, and signed by appellant.
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The appellee cross appeals contending the commission should have
stricken appellant's pleadings from the record. We find the
court did not err in denying the appellant's application and
affirm. We further hold that neither the commission's failure
to strike the legal arguments prepared by a non-attorney on her
behalf nor its refusal to consider the pleadings was erroneous.
I.
FACTUAL BACKGROUND
On October 14, 1997, appellant filed an Application for
Hearing with the commission seeking a declaration that Katherine
Maurath, M.D., was appellant's new treating physician. A legal
brief and a number of enclosures accompanied her Application.
Appellant's central allegation in her Application was that her
authorized treating physician, William S. Berman, M.D., refused
to treat her and that she was therefore entitled to select a new
treating physician.
On May 18, 1998, the deputy commissioner denied the
requested relief, finding that Dr. Berman had never refused to
treat appellant. The deputy commissioner found instead that
appellant was herself responsible for the alleged lack of
treatment and that appellant had "effectively attempted to
create a void in medical treatment which she then argued should
be filled by a physician of her own choice, in this case Dr.
Maurath." The deputy commissioner's findings also included a
- 2 -
ruling that appellant's employer ("appellee") had no duty to
furnish her with subsequent panels of physicians and that it had
done so gratuitously in order to assure her continued treatment.
Accordingly, the appellant was directed to select from the most
recent panel within ten days of the ruling. The deputy
commissioner also held that the appellee was not responsible for
the cost of appellant's treatment with Dr. Maurath.
On May 20, 1998, appellant sought from the commission a
stay of the deputy commissioner's ruling with respect to
appellant's selection of a new treating physician from the
panel. She then filed a Request for Review with the commission
on June 8, 1998.
On November 20, 1998, the commission affirmed the ruling of
the deputy commissioner. The commission agreed that "[t]he
evidence does not establish that Dr. Berman refused to treat the
claimant. Rather, it was the appellant, not Dr. Berman, who
terminated the medical treatment."
The commission also denied the appellee's request to strike
the documents containing legal argument filed by appellant but
prepared on her behalf by a non-attorney. However, the
commission declined to consider these arguments in its review of
the case on the ground that "a non-lawyer may not submit on
behalf of another person or entity documentation including legal
- 3 -
argument and legal citation in support of an issue before the
Commission."
On November 23, 1998, the appellee requested that the
commission reconsider that portion of its opinion concerning its
decision to strike appellant's legal arguments. On December 3,
1998, the commission denied the request for reconsideration on
the ground that the commission's opinion clearly and
unambiguously applied the commission's established procedures in
such cases.
On December 20, 1998, appellant filed the present appeal,
and the appellee cross appealed, bringing before us the
questions earlier stated.
II.
ANALYSIS
A. The commission's factual findings concerning
termination of the appellant's treatment.
On appeal, the factual findings of the commission are
conclusive and binding upon the Court of Appeals, if such
findings are supported by credible evidence. See Commonwealth
v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986); see
also Code § 65.2-706. It matters not that there may be evidence
in the record to support a contrary finding, so long as there is
evidence, or reasonable inferences which can be drawn from the
evidence, to support the commission's findings. See Food Lion,
Inc. v. Lee, 16 Va. App. 616, 619, 431 S.E.2d 342, 344 (1993).
- 4 -
We review the evidence in the light most favorable to the
appellee. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.
211, 212, 390 S.E.2d 788, 788 (1990).
The appellant's entire argument is grounded upon her
assertion that her treating physician, Dr. Berman, refused to
treat her and that she therefore was entitled to seek treatment
from another doctor of her own choice. The facts established by
the evidence fail to demonstrate that Dr. Berman refused
treatment to the appellant. Her claim on appeal is therefore
without merit.
The commission found as a matter of fact that Dr. Berman
did not refuse treatment to the appellant. The record provides
ample evidence to support this finding. Dr. Berman had treated
the appellant for at least three years, and the record gives no
indication that at any time he voiced reluctance to attend
appellant. The record also reveals that even before May, 1996,
the appellant had begun to seek treatment from other physicians
while still continuing her care under Dr. Berman. The record
further shows that only two days before the appellant's request
for a new panel on March 21, 1997, Dr. Berman prepared a medical
progress report detailing the appellant's treatment and
prognosis. Dr. Berman's subsequent refusal to schedule an
appointment with the appellant on March 27, 1997, resulted from
his professional opinion that a consultation by telephone was
- 5 -
adequate to treat her complaint. "Whether a treating physician
has released or abandoned his patient most often is determined
by the express intent of the physician. . . . [I]t is a factual
determination which must be proven by clear and convincing
evidence in light of the high professional responsibility which
a medical doctor owes to provide patient care and treatment."
Jensen Press v. Ale, 1 Va. App. 153, 157, 336 S.E.2d 522, 524
(1985) (emphasis added). Indeed, in Jensen, we observed that
"[o]ne refusal to see [a] claimant on request was not a release
or discharge." Id.The evidence in the record plainly supports the
commission's conclusion that Dr. Berman did not terminate his
treatment of the appellant. Consequently, we will not disturb
that finding upon our review of the case. Not only has the
appellant failed to demonstrate that Dr. Berman expressed a
clear intent to terminate his treatment of her, but her argument
relies heavily on Dr. Berman's one-time refusal to schedule an
appointment with her on March 27, 1997. Thus, Jensen strongly
suggests that even if the commission had made no finding as to
the reason for Dr. Berman's refusal to see the appellant on that
date, this single instance of a refusal to grant her an
appointment would be insufficient evidence of his intent to
terminate treatment. We therefore affirm the commission's
finding that the appellant herself terminated her treatment with
- 6 -
Dr. Berman. Having done so, she was not entitled to pursue
treatment with Dr. Maurath.
B. The commission's refusal to strike legal arguments
filed by the appellant and its refusal to consider
appellant's pleadings.
Although this question is mooted somewhat by our decision
to affirm the commission's findings of fact, we nevertheless
consider it in order to clarify the law and to guide parties in
future cases.
The commission considered its own rules regarding the
pleadings in its decision below. Having found that the
appellant could not have prepared her legal arguments herself
because of her limited education and her inability to
communicate in English, the commission followed its own
precedent in choosing to consider the appellant's petition for
review, but declining to consider legal arguments prepared on
her behalf by a non-attorney. See Smith v. Orange Livestock
Market, Inc., 75 O.W.C. 129 (1996); Mullins v. Dale Presley
Trucking, VWC No. 149-07-23 (June 29, 1994).
We have previously held that when we construe the
adjudicative orders of an administrative agency, we give
deference to that agency's interpretation of the law. See
Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. 119, 129,
510 S.E.2d 255, 260 (1999). We have also noted the commission
has the power to make and enforce rules not inconsistent with
- 7 -
the Workers' Compensation Act in order to further that Act's
provisions. See Code § 65.2-201(A); Arellano v. Pam E. K's
Donuts Shop, 26 Va. App. 478, 482, 495 S.E.2d 519, 521 (1998),
cited in 29 Va. App. at 129 n.2, 510 S.E.2d at 260 n.2. The
commission has the power to enforce its own rules. See id. at
482-83, 495 S.E.2d at 521. When the commission interprets its
own rules, we will accord that interpretation great deference
and will not set it aside unless arbitrary or capricious. See
Specialty Auto Body v. Cook, 14 Va. App. 327, 330, 416 S.E.2d
233, 235 (1992).
We find that the commission acted appropriately in refusing
to consider the legal arguments prepared for the appellant by
her non-lawyer husband. The commission's choice not to strike
the offending documents from the record comports with its prior
decisions, see Smith, 75 O.W.C. 129; Mullins, VWC No. 149-07-23,
and we therefore defer to the commission in its adherence to its
own rules and precedent. It committed no error in not striking
the appellant's legal briefs from the record, and it acted
appropriately by refusing to consider them in rendering its
decision.
Accordingly, we affirm the order of the commission in this
case.
Affirmed.
- 8 -