Walter Everett Childress, Jr. v. Appalachian Power ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
WALTER EVERETT CHILDRESS, JR.
MEMORANDUM OPINION * BY
v. Record No. 0881-98-3 JUDGE JERE M. H. WILLIS, JR.
DECEMBER 22, 1998
APPALACHIAN POWER COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
A. Thomas Lane, Jr., for appellant.
Richard D. Lucas (Carter, Brown &
Osborne, P.C., on brief), for appellee.
On appeal from a decision of the Workers' Compensation
Commission, Walter Childress contends that the commission erred
(1) by holding that treatment by Dr. Gwo-Jaw Wang at the
University of Virginia was not authorized, and thus not
compensable, until August 9, 1994; (2) by refusing admission of a
letter from Childress's original treating physician as
after-discovered evidence; (3) by ruling that Childress's neck
condition is not causally related to the original compensable
accident; (4) by ruling that Childress's psychiatric condition is
not causally related to the original compensable accident; and
(5) by denying benefits for the period of January 4, 1995 through
August 22, 1995. The employer, Appalachian Power Company
(Appalachian), has assigned cross-error to the commission's
rulings (1) that treatment by Dr. Wang was authorized and
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
compensable after August 9, 1994; (2) that the employer's
overpayment of benefits could not be offset against future
payments; and (3) that Childress was entitled to temporary total
disability benefits commencing August 23, 1995. For the
following reasons, we affirm in part and reverse in part.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The
commission's findings of fact will be upheld if supported by
credible evidence. See Morris v. Badger Powhatan/Figgie Int'l,
Inc., 3 Va. App. 277, 279, 348 S.E.2d 876, 877 (1986).
I. AUTHORIZATION OF TREATMENT BY DR. WANG
This case, arising out of a compensable back injury on
January 27, 1985, has a long and complex history of conflict over
Childress's medical treatment. In January 1994, a deputy
commissioner heard arguments relating to this conflict and ruled
that Dr. James C. Dunstan, Jr., would assume the duties of
Childress's primary treating physician. On January 26, 1994, Dr.
Dunstan declined to accept Childress as a patient, because
Childress's condition involved a back injury and Dr. Dunstan
specializes in hand injuries. On February 7, 1994, Dr. Dunstan
referred Childress to Dr. Wang, and Dr. Wang accepted Childress
as a patient.
Upon learning that Dr. Dunstan had declined to treat
Childress, Appalachian offered Childress a panel of three
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physicians. An additional physician, Dr. J.E. Hopkins, was added
to the panel because one of the panel physicians had retired.
Childress saw Dr. Hopkins on August 9, 1994. Dr. Hopkins
examined Childress, but refused treatment, thus rendering that
panel defective. The commission ruled that on August 9, 1994,
the defective panel allowed Childress to seek his own treatment.
It ruled that treatment by Dr. Wang became authorized and
compensable on that date. Both parties have assigned error to
this finding.
Childress contends that treatment by Dr. Wang is compensable
from January 26, 1994, the date that Dr. Dunstan refused to
accept Childress as a patient and referred him to Dr. Wang.
Appalachian contends that treatment by Dr. Wang was not
authorized at any date, because Childress never intended to see
any doctor other than one at the University of Virginia. We
disagree with Appalachian and the commission.
The deputy commissioner ordered Childress to see Dr. Dunstan
as his treating physician. On February 7, 1994, Dr. Dunstan
referred Childress to Dr. Wang. He so notified the commission
the next day. "A long-held principle of the . . . Commission,
founded on Code § 65.1-88 [now Code § 65.2-603], is that medical
management of the claimant is to be directed by the treating
physician . . . ." Press v. Ale, 1 Va. App. 153, 158, 336 S.E.2d
522, 525 (1985). Dr. Dunstan became Childress's treating
physician by order of the commission. Dr. Dunstan referred
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Childress to Dr. Wang, a more suitable physician. Appalachian is
responsible for the care provided by Dr. Wang subsequent to the
date of referral, February 7, 1994.
II. CAUSATION OF NECK INJURY
The original compensable injury was to Childress's lower
back. The initial report describes the injury as "Back-pain in
back run [sic] all way down right leg, disc-L-5-S." Childress
described, and Dr. James E. Foster located, the pain in the lower
back. No mention was made of the neck. The first record of neck
complaints is an office note dated December 5, 1989, when Dr.
Foster reported that Childress had injured his neck jumping over
a creek. Several other physicians who treated Childress declined
to relate the neck pain to the original compensable accident.
"It is fundamental that a finding of fact made by the
Commission is conclusive and binding upon this court on review.
A question raised by conflicting medical opinion is a question of
fact." Department of Corrections v. Powell, 2 Va. App. 712, 714,
347 S.E.2d 532, 533 (1986). The commission held that Childress
failed to sustain his burden of proving the causal relationship
between his neck problems and the compensable injury. The
evidence supports this holding.
III. CAUSATION OF PSYCHIATRIC CONDITION
Childress next contends that the commission erred in ruling
that his psychiatric condition was not causally related to the
1985 compensable injury. Childress has been treated for paranoia
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and related personality disorders. He presented to the
commission evidence that the paranoia was related to the ongoing
conflict over his medical care and specifically pointed to his
major depression following one doctor's refusal to perform
surgery. The commission considered this evidence, as well as the
observations of the carrier's psychiatrist, Dr. Andrew C.
Bockner. The commission determined that Childress's psychiatric
problems pre-existed and were not causally related to the 1985
compensable injury. Credible evidence supports this finding.
IV. ADMISSIBILITY OF LETTER AS AFTER-DISCOVERED EVIDENCE
Childress contends that the commission erred in refusing to
consider a letter from Dr. Foster, pertaining to the cause of
Childress's neck injury. He argues that the letter should be
considered after-discovered evidence. We disagree.
On March 16, 1998, Childress's counsel mailed to the
commission a letter requesting that the full commission consider
an attached letter from Dr. Foster. Counsel's letter stated that
Childress had been attempting to locate Dr. Foster, but had
theretofore been unsuccessful, despite his diligence. The Foster
letter is a single-page, handwritten document, the date of which
is not determinable from the face of the document.
The commission may reopen the record "only when . . . such
course is absolutely necessary." Rules of the Workers'
Compensation Commission 3.3.
The four requirements which must be met
before the record will be reopened on the
basis of after-discovered evidence are that:
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(1) the evidence was obtained after the
hearing; (2) it could not have been obtained
prior to hearing through the exercise of
reasonable diligence; (3) it is not merely
cumulative, corroborative or collateral; and
(4) it is material and should produce an
opposite result before the commission.
Williams v. People's Life Insurance Co., 19 Va. App. 530, 532,
452 S.E.2d 881, 883 (1995).
Childress failed to prove any of the foregoing elements.
The letter and its date were not authenticated. When and under
what circumstances the letter was obtained was left undetermined.
Childress offered no credible evidence that he used reasonable
diligence in attempting to locate Dr. Foster. The letter is so
sparse that it could have no material effect on the decision of
the commission. It provides no new evidence, but offers only the
bare opinion of Dr. Foster that Childress's neck problems may be
manifestations of his back injury. Thus, the commission properly
refused admission of the letter as after-discovered evidence.
V. DATES OF DISABILITY
The commission determined that Childress was able to work as
a line mechanic for Appalachian from January 4, 1995, until he
re-injured his back on August 22, 1995. Childress contends that
he was disabled the entire time and should therefore be
compensated for this period. Conversely, Appalachian contends
that no more benefits are due because Childress did not become
disabled on August 22, 1995. We disagree with both parties and
affirm the decision of the commission.
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The only medical evidence supporting Childress's claim that
he was disabled throughout the entire period is the opinion of
Dr. Solyom that Childress has a psychiatric condition. We have
already affirmed the commission's finding that the psychiatric
condition was pre-existing. Thus, no evidence would support a
finding that Childress was disabled from January 4, 1995 through
August 22, 1995.
Childress contends that Appalachian did not comply with Rule
1.4, which requires that benefits be paid by an employer through
the date of filing of an application for a hearing. See Rules of
the Workers' Compensation Commission 1.4. The commission
determined that Appalachian had paid the amount owed to
Childress, but had mistakenly classified the payment as long-term
disability benefits rather than as workers' compensation.
Regardless, Childress did not raise this issue until two days
before the hearing, and so did not do so timely.
We also disagree with Appalachian's contention that the
commission erred in finding that Childress again became disabled
on August 22, 1995. Dr. Donald P.K. Chan, an orthopedist at the
University of Virginia, opined that Childress was totally
disabled from his back condition alone, regardless of neck or
psychiatric problems. Thus, credible evidence supports the
commission's finding that Childress became totally disabled after
August 22, 1995.
VI. ENTITLEMENT TO CREDIT FOR OVERPAYMENT
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The employer contends that it has overpaid Childress
$9.022.83 1 and that it should be credited with that overpayment
as an offset against future benefit payments. While it is clear
that an overpayment was made, the mistake was unilateral on the
part of the employer. The commission found that by commingling
Childress's workers' compensation benefits and his total
disability payments, the employer made the mistake in such a
manner that Childress could not have recognized the error. The
commission recognized that workers' compensation is designed to
be compensatory and should not provide a windfall to the injured
employee. Nonetheless, the commission found that allowing an
offset to Appalachian for its own mistake in this case would not
be equitable. Childress did not recognize the error while it was
being made, and thus could not have planned for a decrease in his
current payments to make up for the mistake. The commission
found that allowing that offset would unnecessarily and
improperly punish Childress. Code § 65.2-520 permits recoupment
by an employer of voluntary excess payments with the approval of
the commission. Under the circumstances of this case, we cannot
say that the commission abused its discretion in denying approval
for recoupment or offset.
1
The employer owed Childress $35,541 in workers'
compensation benefits. It paid him $22,670.54 in workers'
compensation and $22,410.91 in long-term disability benefits.
Although the overpayment seems to total $10,540.45, the deputy
commissioner reached the figure $9,022.83 through the unrefuted
evidence offered by the employer. The full commission determined
that the calculation would stand because neither party raised an
objection to the amount.
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VII. SUMMARY
We affirm the commission's holdings (1) that Childress's
neck condition was not causally related to the 1985 compensable
accident; (2) that Childress's psychiatric condition was
pre-existing and not causally related to the 1985 compensable
accident; (3) that the letter from Dr. Foster does not fulfill
the requirements of after-discovered evidence and its
admissibility was properly denied; (4) that Childress was capable
of returning to work as a line mechanic on January 4, 1995; (5)
that Childress was re-injured on August 22, 1995, and was
entitled to benefits after that date; and (6) that Appalachian's
overpayment of benefits cannot be offset against future payments
to Childress. We reverse the commission's finding that Dr.
Wang's treatment was not authorized until August 9, 1994. We
hold that such treatment was authorized and compensable from the
date of referral by Dr. Dunstan, February 7, 1994.
Accordingly, the decision of the commission is affirmed in
part and reversed in part.
Affirmed in part,
reversed in part.
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