Dan River, Inc. v. Betty L. Owen ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
DAN RIVER, INC.
MEMORANDUM OPINION* BY
v. Record No. 2222-00-3 JUDGE RUDOLPH BUMGARDNER, III
APRIL 24, 2001
BETTY L. OWEN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James A. L. Daniel (Martha White Medley;
Daniel, Vaughan, Medley & Smitherman, P.C.,
on brief), for appellant.
J. Gregory Webb (Michie, Hamlett, Lowry,
Rasmussen & Tweel, on brief), for appellee.
Dan River, Inc. seeks reversal of the Workers' Compensation
Commission's award of benefits to Betty L. Owen. It contends
the employee failed to establish as a matter of law that she was
entitled to benefits. For the following reasons, we affirm in
part and reverse in part.
"Decisions of the commission as to questions of fact, if
supported by credible evidence, are conclusive and binding on
this Court." Manassas Ice & Fuel Co. v. Farrar, 13 Va. App.
227, 229, 409 S.E.2d 824, 826 (1991). "If there is evidence or
reasonable inference that can be drawn from the evidence to
support the Commission's findings, they will not be disturbed by
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
this Court on appeal, even though there is evidence in the
record to support contrary findings of fact." Caskey v. Dan
River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11
(1983).
The 61-year-old employee injured her back at work on
December 16, 1997, while lifting a king-size comforter set,
"bed-in-a-bag," over her head. When she lifted the bag and
placed it in a cardboard box, she felt a burning pain across the
lower part of her back. She has not worked since December 21,
1997. The employee testified her painful symptoms started after
the work accident.
On December 18, 1997, the employee saw Dr. Thomas M.
Alabanza, a primary care physician. She selected him from a
list of physicians in the employer's health plan. She advised
him that she pulled a muscle in her back while lifting boxes at
work. On December 22, 1997, Dr. Alabanza took her out of work
for ten days and prescribed medications for her pain. She gave
the employer her work release that day and, at its clinic,
selected orthopedic surgeon Dr. Lawrence F. Cohen as her
treating physician.
Dr. Alabanza referred the employee to Dr. J. Stephen
Eggleston for chiropractic care. Between February 2, 1998 and
February 18, 1998 she visited him ten times. The employee, who
denied previously having any lower back problems, told him that
on December 16, 1997 she was lifting a king-size comforter over
- 2 -
her head and had immediate unrelenting pain. On February 4,
1998, Dr. Eggleston diagnosed the employee with a compression
fracture. He stated, "it's pretty clear to me that [the cause
of the fracture] is consistent with the work injury described by
the patient." Dr. Eggleston concluded the employee was totally
disabled from December 20, 1997 through February 27, 1998.
On February 16, 1998, Dr. Eggleston called Dr. Alabanza
regarding the employee's insurance coverage. Gateway Southern
Health authorized only ten visits for the year. Dr. Eggleston
indicated the employee had one visit left, but needed ten more
over the next month for acupuncture and physical therapy.
Gateway did not authorize more visits. With "no more than 20%
improvement," and a "guarded" prognosis, Dr. Eggleston returned
the employee to Dr. Alabanza on February 18, 1998.
Dr. Alabanza referred the employee to Dr. Cohen on February
2, 1998. On February 25, Dr. Cohen diagnosed her with a
compression fracture at T12 and kyphosis. He recommended a
chairback brace to alleviate her symptoms, which she wore. On
March 4, 1998, Dr. Cohen recommended a bone density evaluation
and CT scan to determine the degree of the employee's
osteoporosis or osteopenia. The CT scan was completed March 6,
1998. In a letter to counsel dated July 16, 1998, Dr. Cohen
stated that due to the employee's osteoporosis or osteopenia, he
"probably will not [be able] to give any type of opinion as to
whether this was a work related injury or not."
- 3 -
The employee sought a second opinion from Dr. Donald P. K.
Chan at the University of Virginia. After evaluating the
employee and reviewing her records, Dr. Chan opined that her
disability is "most likely due to the lifting accident . . . and
pre-existing . . . osteoporosis."
The employee filed a claim with the commission November 12,
1998. The deputy commissioner determined she had "set forth a
particular incident occurring at a reasonable [sic] specific
time." The deputy denied the employee's claim, however, because
she "failed to prove that her disability and medical treatment
are causally related" to the work incident.
The employee appealed. In its December 17, 1999 opinion,
the full commission reversed the deputy's finding of causation
and remanded the case for consideration of the employer's
previously filed defenses. At the second hearing, the deputy
commissioner determined the employee was totally disabled, and
under no obligation to market her residual work capacity, from
December 22, 1997 through April 19, 1998 and from September 21,
1998 forward.
The employer appealed, and the full commission affirmed the
deputy's award of benefits as modified. 1 One commissioner
1
The commission modified the deputy's date at which the
employee's second period of disability commenced, from September
21, 1998 to June 29, 1998 and continuing.
- 4 -
dissented on the ground that the employee unjustifiably refused
medical treatment.
First we consider whether the commission erred in finding
that the employee established a causal connection between the
work-related injury and her disability. The employer conceded
it did not preserve its objection to the deputy's finding that
she suffered an injury by accident. That issue is uncontested,
and we do not address it.
The commission's determination of causation and its
resolution of conflicting medical opinions are questions of
fact. Corning, Inc. v. Testerman, 25 Va. App. 332, 339, 488
S.E.2d 642, 645 (1997) (causation); Celanese Fibers Co. v.
Johnson, 229 Va. 117, 120-21, 326 S.E.2d 687, 690 (1985)
(conflicting medical opinions). The employee's testimony
regarding causation may be considered, particularly when the
medical testimony is inconclusive. Dollar General Store v.
Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996).
Where an employee's pre-existing condition is aggravated,
accelerated, or exacerbated by a work-related injury, the
resulting disability is covered under the Workers' Compensation
Act. Olsten of Richmond v. Leftwich, 230 Va. 317, 319-20, 336
S.E.2d 893, 895 (1985).
The commission's finding, that the employee established
that it was more probable than not that her disability was
caused, at least in part, by the work-related accident, is
- 5 -
supported by credible evidence. The employee suffered from
osteoporosis and osteopenia. After the accident, she was
diagnosed with a T12 compression fracture and for the first time
experienced lower back pain. Dr. Eggleston opined, "As far as
the cause of the fracture, it's pretty clear to me that it is
consistent with the work injury described by the patient."
Dr. Cohen could not state to a reasonable degree of medical
certainty whether the employee's accident caused her disability
because he had an incomplete medical record to rule out other
possible causes. Dr. Cohen was skeptical because a compression
fracture is not likely to result from a lifting incident. He
conceded, however, that due to the employee's osteoporosis, a
lifting incident could have caused her fracture.
The commission relied on the opinions of Drs. Eggleston and
Chan and found the independent records review conducted by
Dr. J. Gordon Burch unpersuasive. The employer attempts to
discredit the opinions of Drs. Alabanza, Eggleston, and Chan
because they provided unauthorized treatment. The fact that
their services were unauthorized does not mean that their
opinions are not credible evidence on causation.
It is the commission's duty to weigh the evidence and
determine the credibility of the witnesses. "We do not retry
the facts" on appeal. Caskey, 225 Va. at 411, 302 S.E.2d at
510. The commission was free to adopt the opinions of Drs.
Eggleston and Chan. Its finding was also supported by the
- 6 -
employee's testimony and Dr. Alabanza's notations that relate
her disability to the accident. Finding no error, we affirm the
commission's decision that the employee established a causal
connection between her injury and the work-related accident.
When a physician releases an employee to light duty work,
she has an obligation to market her residual work capacity.
Code § 65.2-510. The commission determined that the employee
was disabled and released from work from December 22, 1997
through April 19, 1998 and June 29, 1998 and continuing. The
issue is whether the employee marketed her residual work
capacity from April 20 through June 28, 1998. She concedes she
has not looked for work after December 22, 1997. Thus, the
record supports the commission's finding that she is not
entitled to an award from April 20, 1998 through June 28, 1998,
the period in which she was released to light duty work.
Next, we consider whether the employee is barred from
receiving compensation for unjustifiably refusing to accept
medical services offered by the employer. Code § 65.2-603;
Shawnee Management Corp. v. Hamilton, 25 Va. App. 672, 678, 492
S.E.2d 456, 459 (1997) (en banc). Whether or not she refused
medical treatment is a question of fact. Id. In determining
whether the employee's refusal of treatment is justified, we
review the evidence from her perspective and "in light of the
information available to [her]" at the time of her decision.
- 7 -
Holland v. Virginia Bridge & Structures, Inc., 10 Va. App. 660,
662, 394 S.E.2d 867, 868 (1990) (citation omitted).
On March 4, 1998, Dr. Cohen recommended the employee
undergo a CT scan of the area surrounding the compression
fracture to "see what the anatomy is and see if there is a burst
quality to this." He also wanted to get a bone density
evaluation. The CT scan was done March 6, and Dr. Cohen
reviewed it March 9, 1998. On April 20, 1998, Dr. Cohen
explained to the employee that the bone scan results would rule
out a tumor or infection, enabling him to determine why she was
still in so much pain. The employee, however, "adamantly
refused the bone scan," noting it was too expensive.
On May 18, 1998, Dr. Cohen noted the employee "is still
having severe pain." He recommended she start getting out of
the back brace and asked "if she wanted to see Dr. Fraifeld, a
pain management doctor." She refused this option. Then he
discussed surgical intervention with her, for which she would
need to have an MRI.
The MRI was done July 1, 1998. It revealed "chronic
compression deformity of T12," with no sign of a herniated or
bulging disc. Dr. Cohen's July 27, 1998 office note states that
the MRI revealed a kyphotic deformity. He again discussed
surgery with the employee, which he noted was a major procedure.
He recommended a CT scan of the employee's abdomen to discern
the source of her cramps. She refused this option despite
- 8 -
Dr. Cohen's belief that the fracture had healed and that a tumor
could be causing her pain. He also recommended she get a second
opinion.
The employee visited with Dr. Chan at UVA for a second
opinion regarding causation. Dr. Chan's impression, documented
in his September 4, 1998 letter, indicates the employee "has a
compression fracture at T12, most likely due to the lifting
accident and also most likely because of pre-existing osteopenia
from post menopausal osteoporosis." He concluded, "I think her
continued pain is the result of this fracture."
The commission affirmed the deputy's finding that the
employee "did not unjustifiably refuse to undergo the
recommended surgical procedure." On appeal, the employer does
not maintain that she needed to undergo the surgery. It was a
complicated procedure, and Dr. Cohen offered only a 60% rate of
success. The employer maintains that the employee's refusal to
undergo any of the three courses of treatment recommended by her
treating physician was not justified.
Workers' compensation benefits are conditioned upon the
employee's undergoing necessary medical treatment to place the
cost of treatment on the employer and restore the employee's
health enabling her to return to work. Davis v. Brown &
Williamson Tobacco Co., 3 Va. App. 123, 128, 348 S.E.2d 420, 422
(1986) ("the Commission . . . [must] focus upon the purpose of
the legislature in requiring the employer to furnish and
- 9 -
obligating the employee to receive medical attention" (emphasis
added)). Where the employee refuses prescribed treatment and
such refusal results in an aggravation of, or impediment to the
cure of, the disability, the employee has not taken reasonable
steps to limit the employer's liability. Id. at 128-29, 348
S.E.2d at 423.
The employee refused to undergo any of the recommended
treatments: surgery, bone scan, or pain management. It does
not serve the purposes of the Act for the employee to collect
benefits but sit idle and refuse every course of recommended
medical treatment that could improve her condition. The
employee's refusal to have the surgery was justified considering
her age, the seriousness of the procedure, and the poor odds of
its success. But she also refused the bone scan, which would
have permitted the doctor to diagnose the cause of her
continuing pain. Finally, she refused to get pain management
treatment to reduce or minimize her pain. The employee cannot
say no to every avenue of treatment.
We affirm the commission's award of benefits to the
employee during her periods of disability, December 22, 1997
through April 19, 1998 and June 29, 1998 and continuing, and its
decision that she is not entitled to benefits from April 20,
1998 through June 28, 1998, because she was released to light
duty and did not market her residual capacity. However, we
reverse the decision that the employee was justified in refusing
- 10 -
medical treatment because the commission did not determine
whether her refusal to undergo the bone scan or pursue pain
management was justified. 2 Accordingly, we affirm in part, and
reverse and remand in part for further proceedings consistent
with this opinion.
Affirmed in part,
and reversed and
remanded, in part.
2
The employee denied she refused to undergo the bone scan.
She claimed Dr. Cohen told her the procedure was not necessary
and recommended she have it later. The commission did not
indicate if their decision was based on believing the employee's
version and discrediting the doctor's version.
- 11 -