Stafford Sherriff's Off. v. Victor J Debord , 22 Va. App. 312 ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
Argued at Alexandria, Virginia
STAFFORD COUNTY SHERIFF'S OFFICE
and
VIRGINIA MUNICIPAL GROUP OPINION BY
SELF-INSURANCE ASSOCIATION JUDGE JERE M. H. WILLIS, JR.
APRIL 23, 1996
v. Record No. 2275-95-4
VICTOR J. DEBORD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Jennifer G. Marwitz (Ralph L. Whitt, Jr.;
Sands, Anderson, Marks & Miller, on briefs),
for appellants.
Michael A. Kernbach (Laurie D. Waters; Jack
T. Burgess & Associates, P.C., on brief), for
appellee.
On appeal from an award of compensation and medical expenses
to Victor J. DeBord, Stafford County Sheriff's Office (Stafford
County) contends that no credible evidence supports the
commission's finding that DeBord did not unjustifiably refuse
authorized medical treatment as required by Code § 65.2-603. We
disagree and affirm the commission's decision.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. Crisp v. Brown's Tysons Corner
Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
"Factual findings by the commission that are supported by
credible evidence are conclusive and binding upon this Court on
appeal." Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131,
134, 428 S.E.2d 32, 34 (1993).
On April 24, 1994, DeBord sustained a compensable injury by
accident arising out of and in the course of his employment as a
Stafford County deputy sheriff. He suffered chest injuries,
lacerations, and soft tissue injuries to various parts of his
body. He was treated at Fairfax Hospital and was released on
April 25, 1994, with instruction to seek follow-up treatment with
his family physician.
DeBord's family physician, Dr. Banzon, read about the
accident in the newspaper. On April 26, 1994, Dr. Banzon called
DeBord and suggested that he come in for a check-up. That same
day, Detective Jerry Tulsom hand delivered to DeBord a list of
panel physicians and a form for him to sign acknowledging receipt
of the list. DeBord signed the acknowledgment form, which
states, "I have received a copy of the Panel of Physicians list
by my supervisor at the time I reported my work-related
injury/illness. I will select a physician, if needed, from the
list for any necessary treatment."
DeBord saw Dr. Banzon on April 29, 1994 and again on May 9.
Prior to both visits with Dr. Banzon, DeBord notified Stafford
County's injury coordinator and a Quick Fax Report was sent to
the Virginia Municipal Liabilities Group (VML), the county's
workers' compensation insurer. Neither party objected to
DeBord's treatment by Dr. Banzon.
On May 12, 1994, after DeBord had returned to work, a
representative of VML contacted DeBord concerning his treatment
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by Dr. Banzon. On May 13, 1994, the carrier sent DeBord a letter
stating that his claim was accepted as compensable and his
emergency medical treatment would be covered. However, the
letter advised him that because he had not sought follow-up
treatment from a panel physician, his medical expenses and
disability compensation would not be covered.
The deputy commissioner found that DeBord had not refused
medical care from a panel physician, and that even if a refusal
occurred, it was justified. The deputy commissioner awarded
DeBord temporary total disability benefits from April 24, 1994
through May 9, 1994, and the reasonable cost of authorized
medical care.
On review, the full commission found no unjustified refusal
because DeBord had not refused to see a panel physician. It
noted that Dr. Banzon practiced with the same medical group as a
physician on the panel, but at a different location. The
commission noted that DeBord had notified his employer and
insurer prior to his treatment by Dr. Banzon and that neither the
county nor VML had objected until after DeBord's release from Dr.
Banzon's care and return to work.
Citing Peninsula Transp. Dist. Comm'n. v. Gibbs, 228 Va.
614, 324 S.E.2d 662 (1985), Stafford County contends that
DeBord's right to compensation is barred because he unjustifiably
refused to seek treatment by a panel physician. In Gibbs, the
Supreme Court denied benefits because the claimant refused
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treatment by a panel physician and instead sought treatment from
her family physician. The Court held that the claimant was
"under a duty to choose a physician from the panel." Id. at 618,
324 S.E.2d at 664. Stafford County argues that this case is
factually the same as Gibbs.
Gibbs is distinguishable from the present case. In Gibbs,
the claimant received a panel of physicians from a claims
representative, who explained the panel to her. Her employer
advised her that if she sought treatment from a non-panel
physician, that treatment would be at her own expense. After
conferring with her attorney, the claimant refused treatment by a
panel physician. Her employer did not acquiesce in this refusal.
Upon his discharge from Fairfax Hospital, DeBord was
instructed to consult his family physician. That physician, Dr.
Banzon, contacted DeBord and arranged to see him promptly.
Moreover, as the commission noted, Dr. Banzon was a member of the
same medical group as a member of the panel. DeBord justifiably
thought that he was seeking appropriate medical treatment in a
manner designed to expedite his recovery and return to work. He
did not perceive that another physician was needed. Informed of
this course, neither the county's representative nor VML
objected. Unlike the claimant in Gibbs, the claimant in this
case at no time refused to be examined or treated by a panel
physician.
Credible evidence supports the commission's finding that
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DeBord did not unjustifiably refuse authorized medical treatment.
The decision of the commission is affirmed.
Affirmed.
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