Buchanan General Hospital v. Frances Hunt ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
BUCHANAN GENERAL HOSPITAL AND
SECURITY INSURANCE COMPANY
OF HARTFORD
MEMORANDUM OPINION **
v. Record No. 1770-01-3 PER CURIAM
OCTOBER 30, 2001
FRANCES K. HUNT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ramesh Murthy; Lisa Frisina Clement; Penn
Stuart, on brief), for appellants.
(D. Edward Wise, Jr.; Arrington, Schelin &
Herrell, P.C., on brief), for appellee.
Buchanan General Hospital and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that employer failed to
prove that (1) Frances K. Hunt unjustifiably refused to
cooperate with Dr. Thomas Hulvey's independent medical
examination; and (2) Hunt was able to return to her pre-injury
work as of May 23, 2000. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
*
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986)). Unless we can say as a matter of law that employer's
evidence sustained its burden of proof, the commission's findings
are binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
I. Unjustified Refusal to Cooperate
Code § 65.2-607(B) provides as follows:
If the employee refuses to submit
himself to [a medical examination paid for
by employer] or in any way obstructs such
examination requested by and provided for by
the employer, his right to compensation and
his right to take or prosecute any
proceedings under this title shall be
suspended until such refusal or objection
ceases and no compensation shall at any time
be payable for the period of suspension
unless in the opinion of the Commission the
circumstances justify the refusal or
obstruction.
In refusing to suspend Hunt's benefits, the commission
found as follows:
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There is no definite statement in
[Dr. Hulvey's] report establishing that Hunt
intentionally failed to cooperate.
Dr. Hulvey advised that Hunt only moved her
neck a few degrees, did not bring her hands
above eye-level, bent forward only a few
degrees, and refused to hyperextend her
back. Yet, he commented that while she
would not comply, she also "seemed to be
unable to cooperate" (emphasis added).
Clearly, Dr. Hulvey concluded that Hunt's
physical status rendered her unable to
perform some of the requested movements.
Accordingly, we are not persuaded that
Hunt's actions were an unjustifiable refusal
to cooperate. Dr. Hulvey recognized that
Hunt's physical limitations affected her
participation in, and cooperation with, the
examination.
The commission's findings are amply supported by a review
of Dr. Hulvey's medical records. Dr. Hulvey noted Hunt's
failure to perform certain movements by opinion that she "could
not or would not comply." This does not establish that she was
feigning her inability to cooperate or intentionally refusing to
cooperate. Moreover, although Dr. Hulvey was less than
satisfied with the extent of his examination, he was able to
obtain sufficient information to draw conclusions regarding
Hunt's condition and the extent of her disability. Credible
evidence of Hunt's impairments is documented in the medical
records of Drs. Christa U. Muckenhausen, James W. Templin, and
Thomas W. Kramer. Based upon this record, we cannot find as a
matter of law that employer's evidence sustained its burden of
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proving that Hunt unjustifiably refused to cooperate with Dr.
Hulvey's examination.
II. Return to Pre-Injury Work
In ruling that employer failed to prove that Hunt was
capable of returning to her pre-injury work as of May 23, 2000,
the commission found as follows:
Dr. Muckenhausen, Hunt's treating physician,
has followed her care for an extended period
of time. Her numerous examinations revealed
objective findings, such as muscle spasms
and tenderness to palpitation. Based on
these evaluations and positive MRI scans,
Dr. Muckenhausen repeatedly opined that Hunt
could not return to her pre-injury
employment. Dr. Templin, who has also
treated Hunt on several occasions, supports
the findings and conclusions of
Dr. Muckenhausen. In August and October
1999, he greatly restricted her activities.
Dr. Templin's April 2000 examination found
cervical tenderness and tightness, back
tenderness and positive straight leg raises.
Lastly, Dr. Hulvey even indicated that Hunt
was unable to return to work. He
recommended that she attend a rehabilitation
center to return her to gainful employment.
Dr. [Jim C.] Brasfield is the only
physician to unconditionally release Hunt to
work, from a physical perspective. We do
not find the report of a physician who
examined her on one occasion to be as
persuasive as that of a treating physician.
Significantly, Dr. Brasfield also noted that
a structured rehabilitation program should
have been provided to Hunt.
We are not convinced by the evidence
presented that Hunt has misrepresented her
condition to Drs. Muckenhausen and Templin
such as to discount their opinions. In
fact, Dr. Muckenhausen noted Hunt's
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cooperation and disagreed that she was
malingering. Further, while Dr. [Paul R.]
Kelley opined that [Hunt] was not
psychiatrically impaired, Dr. [David L.]
Forester has continued to treat her for
psychiatric problems, including depression.
Thus, we are not persuaded that the claimant
was released to return to her pre-injury
work, from a psychiatric perspective.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). Moreover, "[q]uestions raised by
conflicting medical opinions must be decided by the commission."
Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989). We also note "'[t]he general rule . . . that
when an attending physician is positive in his diagnosis . . . ,
great weight will be given by the courts to his opinion.'"
Pilot Freight Carriers, 1 Va. App. at 439, 339 S.E.2d at 572
(citations omitted).
The commission weighed the medical evidence and accepted
the opinions of the treating physicians, Drs. Muckenhausen and
Templin, while rejecting the contrary opinions of the
independent medical examiners, Drs. Brasfield and Kelley.
Because the medical evidence was subject to the commission's
factual determination, we cannot find as a matter of law that
employer's evidence sustained its burden of proving that
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claimant was fully capable of performing her pre-injury work as
of May 23, 2000.
For these reasons, we affirm the commission's decision.
Affirmed.
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