Dominion Coal Corp v. Clyde Lyndell Horne ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
DOMINION COAL CORPORATION
AND
JEWELL RESOURCES CORPORATION MEMORANDUM OPINION * BY
JUDGE LARRY G. ELDER
v. Record No. 2195-96-3 APRIL 22, 1997
CLYDE LYNDELL HORNE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. T. Mullins (Street, Street, Street,
Scott & Bowman, on briefs), for appellants.
Carr L. Kinder, Jr. (John A. Martin;
Browning, Lamie & Sharp, on brief), for
appellee.
Dominion Coal Corporation (employer) and Jewell Resources
Corporation (carrier) appeal a decision of the Workers'
Compensation Commission (commission) awarding medical benefits to
Clyde Lyndell Horne (claimant). For the reasons that follow, we
affirm.
Claimant suffered a compensable injury to his back on
January 9, 1985. Until 1995, claimant had been treated
contemporaneously for many years by two treating physicians: Dr.
Hulvey, an orthopedic surgeon whose office is in Abingdon, and
Dr. Baxter, a general practitioner whose office is in Grundy. In
early 1995, Dr. Baxter announced that he was retiring from the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
practice of medicine. On May 4, 1995, Dr. Hulvey referred
claimant to Dr. Sutherland, a general practitioner whose office
is near claimant's home. On May 8, carrier informed claimant
that it "cannot accept" the referral of Dr. Sutherland because he
"is not an approved panel physician." Carrier offered claimant a
panel of three physicians from which claimant could choose Dr.
Baxter's replacement.
Claimant declined to choose a physician from carrier's panel
and filed a claim with the commission seeking the payment of Dr.
Sutherland's outstanding medical bills. His claim was denied by
a deputy commissioner. Claimant appealed, and the commission
reversed, concluding that employer should pay for Dr.
Sutherland's treatment.
Appellants contend that the commission erred when it
concluded that claimant was validly referred by Dr. Hulvey to Dr.
Sutherland following the retirement of Dr. Baxter. We disagree.
"Code § 65.2-603 allows an employee to select from a panel
of physicians offered by the employer, or in the absence of a
forthcoming offer, to select a physician of the employee's
choice." Biafore v. Kitchin Equip. Co. of Virginia, 18 Va. App.
474, 478-79, 445 S.E.2d 496, 498 (1994) (citing Breckenridge v.
Marval Poultry Co., Inc., 228 Va. 191, 194, 319 S.E.2d 769,
770-71 (1984)). "[O]nce [the selection of a treating physician]
is made, the employee is not at liberty to change therefrom
unless referred by said physician, confronted with an emergency,
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or given permission by the employer and or its insurer or [the]
Commission." Breckenridge, 228 Va. at 194, 319 S.E.2d at 770-71.
However, once a treating physician is in place, the Act
protects the power of the treating physician to direct the
claimant's treatment. In Jensen Press v. Ale, we said:
[M]edical management of the claimant is to be
directed by the treating physician, not by an
employer's representative. "[N]either the
employer nor its insurance carrier may limit
the treating physician in the medical
specialist, or treating facilities to which
the claimant may be referred for treatment."
1 Va. App. 153, 158, 336 S.E.2d 522, 525 (1985) (citation
omitted).
We hold that the commission did not err when it concluded
that claimant's treatment by Dr. Sutherland resulted from a valid
referral by his treating physician, Dr. Hulvey. The record
established that Dr. Hulvey had been one of claimant's treating
physicians since 1986. In May, 1995, after Dr. Baxter announced
his retirement, Dr. Hulvey wrote a letter referring claimant to
another general practitioner, Dr. Sutherland. Because claimant
was referred to a new general practitioner by Dr. Hulvey, an
authorized treating physician, employer was precluded from
interfering in the selection of the general practitioner.
We disagree with appellants' contention that employer has a
right to participate in the selection of Dr. Baxter's replacement
because Dr. Baxter was a treating physician who released claimant
from his care. Appellants rely on the rule established by
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previous decisions of the commission that:
[w]here treatment by the authorized physician
is denied or is otherwise no longer
available, the claimant is obligated to
provide notice to the employer or carrier
that he needs medical care, so that the
employer has an opportunity to provide the
care pursuant to the Act. If such care is
not provided within a reasonable period, the
claimant may seek care from a physician of
his choice.
Perrin v. Econo Clean Janitorial Service, VWC File No. 175-98-30,
slip. op. at 3 (June 18, 1996) (emphasis added).
We hold that the commission's rule mandating employer
participation in the replacement of a claimant's treating
physician does not apply to this case. On its face, the rule
applies to situations in which the treating physician is no
longer available and the claimant is left without any authorized
medical care. In such instances, the rule requires an employer
and claimant to "start from scratch" and to select a replacement
treating physician in the same manner that a treating physician
is initially selected under Code § 65.2-603. This rule does not
apply to this case because Dr. Baxter's retirement did not leave
claimant without an authorized treating physician to manage his
care. The record indicates that claimant had two authorized
treating physicians: Dr. Hulvey and Dr. Baxter. Upon Dr.
Baxter's retirement, Dr. Hulvey was still available to direct
claimant's medical treatment.
Finally, we disagree with appellants' argument that Dr.
Hulvey's referral of claimant to Dr. Sutherland was not based on
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medical necessity. An employer is required to pay for medical
expenses arising from a referral by a claimant's treating
physician that is causally related to the compensable injury and
deemed necessary by the treating physician. See Volvo White
Truck Corp. v. Hedge, 1 Va. App. 195, 200, 336 S.E.2d 903, 906
(1985). Whether a referral is deemed medically necessary by a
treating physician is a question of fact.
On appellate review, we must construe the evidence in the
light most favorable to the prevailing party below, claimant in
this instance. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1
Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). "[T]he
commission's findings of fact are conclusive and binding on us
when there is credible evidence in support of such findings."
Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d
782, 788 (1988).
The commission found that Dr. Hulvey's referral of claimant
to Dr. Sutherland was based on medical necessity, and this
finding is supported by credible evidence in the record. The
circumstances of Dr. Hulvey's referral are detailed in his
letters of May 4, 1995 and November 20, 1995. In his letter of
May 4, Dr. Hulvey stated that claimant "need[ed] to find another
general physician" because Dr. Hulvey was treating claimant's
back problem "conservatively" and claimant would benefit from
having a general practitioner "follow him up over the long haul
for his low back problem." In addition, in his letter of
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November 20, Dr. Hulvey stated that he made the decision to refer
claimant to Dr. Sutherland and that "[claimant] did not encourage
or urge me to select any particular physician as I recall."
Thus, we cannot say that the commission's finding that claimant's
referral to Dr. Sutherland was "deemed reasonable and necessary
by Dr. Hulvey" is not supported by credible evidence.
For the foregoing reasons, we affirm the decision of the
commission.
Affirmed.
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