The Southland Corp, t/a 7-Eleven v. Sharon Welch , 33 Va. App. 633 ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia
THE SOUTHLAND CORPORATION, t/a 7-ELEVEN
STORE #23305 AND AMERICAN PROTECTION
INSURANCE COMPANY
OPINION BY
v. Record No. 0532-00-4 JUDGE JAMES W. BENTON, JR.
OCTOBER 31, 2000
SHARON WELCH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Edward H. Grove, III (Brault, Palmer, Grove,
Zimmerman, White & Steinhilber LLP, on
brief), for appellants.
Diane C. H. McNamara for appellee.
This appeal arises from the Workers' Compensation
Commission's rulings that Sharon Welch's medical treatment was
unauthorized and that she did not unjustifiably refuse medical
treatment. The Southland Corporation contends the commission
erred in ruling that Welch's failure to select a physician from
a panel did not bar her from receiving wage loss indemnity
benefits. By cross-appeal, Welch contends the commission erred
in ruling that her failure to select a physician from the panel
rendered her treatment unauthorized. We affirm the commission's
award.
I.
At the evidentiary hearing on Welch's application for
benefits, the evidence proved that Welch was injured at work on
September 3, 1998, when a thirty to forty pound carton fell onto
her right shoulder, neck, and back. When her supervisor arrived
at work, Welch reported her injury and left work because she was
experiencing pain. Although the supervisor did not direct Welch
to any specific medical provider, Welch called her supervisor
from home to tell her she intended to call Kaiser Permanente,
Welch's medical insurance company, for medical treatment. Her
supervisor told her to do what she needed to do to get
treatment.
That night, a person at Kaiser advised Welch by telephone
to apply ice and heat on her injury, take Tylenol, and see a
doctor in the morning if the injury was not better. The next
morning, Welch went to Kaiser and was examined by a nurse
practitioner, who instructed Welch to take several prescribed
medicines and to return if the symptoms increased or persisted.
After leaving Kaiser, Welch went to her place of employment and
discussed completing an accident report with the store manager.
Although Welch told the manager that she had gone to Kaiser for
treatment, the manager did not tell her to seek treatment
elsewhere.
Welch returned to Kaiser on September 8, 1998, and was
evaluated by Dr. Beverly Pfister. Dr. Pfister diagnosed
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paracervical and paralumbar strain, advised Welch to continue
her medication, and ordered physical therapy.
By letter dated September 9, 1998, a claims adjuster for
Southland's workers' compensation carrier advised Welch that her
treatment by the Kaiser doctors was not authorized, that
Southland would pay those doctors "to date," and that Welch
should seek treatment from one of three doctors listed in the
letter. Welch received this letter three or four days after
September 9; however, she decided to continue treatment at
Kaiser and returned to see Dr. Pfister on September 15 because
her "pain [was] worse." Dr. Pfister's notes reflect that at the
date of this evaluation Welch was still awaiting her first visit
to physical therapy. Welch continued to receive treatment from
Dr. Pfister and other doctors at Kaiser until she was released
to return to light duty work on February 1, 1999.
Affirming the deputy commissioner's decision, the
commission determined that Southland's offer of a panel of
physicians was neither untimely nor unreasonable. Thus, the
commission ruled that Southland "was not financially responsible
for treatment rendered by [Welch's] unauthorized physicians
after receipt of the proffered panel." The commission also
ruled that Welch's decision to continue "treatment by her
unauthorized physician is not necessarily the equivalent of a
refusal of medical services." Finding that Welch had not
unjustifiably refused treatment and that no evidence proved the
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unauthorized treatment adversely affected her recovery, the
commission awarded Welch wage loss benefits for her periods of
disability.
II.
In pertinent part, Code § 65.2-603 provides as follows:
A. 1. As long as necessary after an
accident, the employer shall furnish or
cause to be furnished, free of charge to the
injured employee, a physician chosen by the
injured employee from a panel of at least
three physicians selected by the employer
and such other necessary medical attention.
. . . The employee shall accept the
attending physician, unless otherwise
ordered by the Commission, and in addition,
such surgical and hospital service and
supplies as may be deemed necessary by the
attending physician or the Commission.
* * * * * * *
B. The unjustified refusal of the employee
to accept such medical service or vocational
rehabilitation services when provided by the
employer shall bar the employee from further
compensation until such refusal ceases and
no compensation shall at any time be paid
for the period of suspension unless, in the
opinion of the Commission, the circumstances
justified the refusal. In any such case the
Commission may order a change in the medical
or hospital service or vocational
rehabilitation services.
Applying the predecessor to this statute, we ruled that
"[a]n attending physician selected by an employee becomes the
treating physician if the employer fails or refuses to provide a
panel of physicians." Davis v. Brown & Williamson Tobacco Co.,
3 Va. App. 123, 126, 348 S.E.2d 420, 421 (1986). The principle
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is well established, however, that although Code § 65.2-603
contains "no requirement . . . concerning the time after an
accident within which an employer must offer an employee the
panel of physicians prescribed by the Code section . . . , the
appropriate time must be determined by resort to a rule of
reasonableness, with the time varying from case to case
depending upon the different circumstances involved." Peninsula
Transp. Dist. Comm'n v. Gibbs, 228 Va. 614, 618, 324 S.E.2d 662,
664 (1985).
Among the findings the commission made concerning the
timeliness of Southland's notification of the panel are the
following:
We believe that this was a timely offer.
Between the date of her accident and
September 8, 1998, there is no evidence that
the employer was aware that [Welch] was in
need of extended medical care. There is no
evidence that the employer was informed that
[Welch] was scheduled for additional
treatment after September 4, 1998. [Welch]
was released that day with recommended
medications, and instructed to return only
as needed. Not until September 8, 1998,
when [Welch] first saw an actual physician
at Kaiser, does it become apparent that
[Welch] was likely to suffer a significant
period of disability, and needed an
attending physician and possibly a referral
for specialized care. We believe that the
carrier's offer of a panel of physicians,
sent to [Welch] one day after her first
treatment by Dr. Pfister, and received by
[Welch] prior to her next treatment and
before undertaking any subsequent referrals,
was reasonable and timely.
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These findings are supported by credible evidence in the
record; thus, they are "conclusive and binding as to all
questions of fact." Code § 65.2-706. See Stafford County
Sheriff's Office v. DeBord, 22 Va. App. 312, 314, 469 S.E.2d 88,
89 (1996). Accordingly, we affirm the commission's rulings that
under these circumstances the notification of the panel of
physicians was timely, that Welch's continued treatment with the
Kaiser physicians was unauthorized, and that Southland was not
required to pay for the unauthorized treatment.
III.
The finding of unauthorized treatment, "however, is not
necessarily equivalent to a refusal of medical services under
Code § [65.2-603]." Davis, 3 Va. App. at 127, 348 S.E.2d at
422. Each concept requires a different analysis.
The expense of medical service, if
unauthorized, may not be compensable. But
the use of unauthorized medical service is
not necessarily a refusal of medical
service. If medical care required under
Code § [65.2-603] is refused, further
compensation is suspended unless the refusal
is justified or until the refusal is cured.
Richmond Mem. Hosp. v. Allen, 3 Va. App. 314, 317, 349 S.E.2d
419, 421 (1986) (citations omitted). Indeed, we held in Davis
that the commission "erroneously expand[ed] the notion of what
constitutes 'unjustified refusal' of medical treatment . . . by
equating unauthorized medical treatment with unjustified refusal
of treatment." 3 Va. App. at 126, 348 S.E.2d at 421.
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Relying on Allen and Davis, the commission recognized "that
penalty for refusal of medical treatment must be based upon
'unjustified refusal.'" This ruling is consistent with our
holding that "[t]he statute does not apply to every refusal of
medical treatment." Biafore v. Kitchin Equip. Co., 18 Va. App.
474, 478, 445 S.E.2d 496, 498 (1994). The legislative intent
implicit in "that statute 'is to penalize employees who
unjustifiably refuse reasonable and necessary medical treatment'
from their attending physician." Id. Code § 65.2-603 may not
be used to penalize an employee whom the commission finds has
reasonably sought to restore her health by seeking additional
treatment. See Davis, 3 Va. App. at 128-29, 348 S.E.2d at 423.
Moreover, we have held that "[t]he matter of justification must
be considered from the viewpoint of the [employee] and in light
of the information which was available to [her]." Holland v.
Virginia Bridge Structures, Inc., 10 Va. App. 660, 662, 394
S.E.2d 867, 868 (1990).
As the commission found, Welch promptly sought medical
treatment for her injury. Although she reported to her
supervisor that she was receiving treatment, her supervisors did
not comment on her choice of treatment. Before Welch received
the letter from Southland containing notification of the panel,
she had selected a treating physician and received treatment
from that physician. Welch followed the treatment regimen that
was prescribed to her by the doctors at Kaiser. Welch's doctor
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knew her history, and no evidence established that the treatment
was inappropriate or unnecessary. Moreover, the commission
found that no evidence proved that Welch's continued treatment
with the unauthorized physician "adversely affected her
recovery."
These findings are based on credible evidence and are
binding on this appeal. Accordingly, we hold that the
commission properly ruled that Welch did not unjustifiably
refuse medical treatment.
For these reasons, we affirm the commission's award.
Affirmed.
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