Pepsi-Cola Bottlers v. Joseph W. Kane ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Senior Judge Overton
PEPSI-COLA BOTTLERS OF WASHINGTON,
D.C., INC. AND LUMBERMENS MUTUAL
CASUALTY COMPANY
MEMORANDUM OPINION *
v. Record No. 2299-98-4 PER CURIAM
FEBRUARY 16, 1999
JOSEPH W. KANE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert J. Lowe, Jr.; Kimberly A. Karcewski;
Lowe & Associates, on briefs), for
appellants.
(Julie H. Heiden; Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for
appellee.
Pepsi-Cola Bottlers of Washington, D.C., Inc. and its
insurer (hereinafter referred to as "employer") contend that the
Workers' Compensation Commission ("commission") erred in denying
its request for a change in Joseph W. Kane's ("claimant")
treating physicians. 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. See
Rule 5A:27.
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
*
Pursuant to Code § 17-1.413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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 denying employer's application, the commission found as
follows:
[T]he record establishes that Dr. [Leo]
Goldhammer prescribed recognized conservative
treatment, that he administered and ordered
appropriate testing, that he procured
consultations, and that he worked in
conjunction with Dr. [Charles B.] Jackson,
who obviously had no problem with Dr.
Goldhammer's treatment plan. Moreover, in
his recent medical report, Dr. [Anthony] Debs
expressed no recommendations for treatment,
and in fact felt that maximum medical
improvement was reached back in 1993. The
claimant's condition is obviously a
deteriorating one as is to be expected with a
degenerative spinal condition, and both
Doctors Goldhammer and Jackson have addressed
this in their recommendations. No physician
at this time is recommending surgery.
We find no basis to order a change in
treating physicians, as Dr. Goldhammer has
not endorsed the suggestion of a functional
capacity evaluation and did not immediately
address a question about such an evaluation.
Even Dr. Debs has not recommended a
functional capacity evaluation, but rather,
only raised it as a possibility. Dr.
Goldhammer has given sound reasons for his
belief that the claimant should not
physically have to undergo it. . . .
- 2 -
Moreover, Dr. Goldhammer's failure to
immediately respond to the insurer's inquiry
about the functional capacity evaluation does
not constitute a basis to order a change in
treating physicians, when the record
otherwise reveals that he has promptly
forwarded his reports following evaluations,
and he already completed a functional
capacity evaluation. Further, there were
other avenues to obtain this information
either through interrogatories or a
deposition.
Viewing the evidence in the light most favorable to
claimant, who prevailed before the commission, we find that the
commission's factual findings are fully supported by the medical
records of Drs. Goldhammer and Jackson. Based upon those factual
findings, the commission could reasonably conclude that Dr.
Goldhammer, in conjunction with Dr. Jackson, has adequately
treated claimant's condition and has devised an appropriate
treatment plan.
Because the medical records were subject to the commission's
factual determination, we cannot find as a matter of law that
employer's evidence met its burden of proof. Accordingly, we
affirm the commission's decision.
Affirmed.
- 3 -