Colonial Williamsburg Foundation v. William Bradby ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
COLONIAL WILLIAMSBURG FOUNDATION
MEMORANDUM OPINION* BY
v. Record No. 1388-02-1 JUDGE SAM W. COLEMAN III
DECEMBER 31, 2002
WILLIAM K. BRADBY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kathryn Spruill Lingle (Theisen & Lingle,
P.C., on brief), for appellant.
Byron A. Adams for appellee.
Colonial Williamsburg Foundation (employer) appeals a
decision of the Workers' Compensation Commission holding
employer responsible for certain medical expenses incurred by
William K. Bradby (claimant). Employer contends the commission
erred in finding (1) claimant proved that medical treatments
rendered by Dr. Patrick Harding, Dr. Robert Solomon, and by
Williamsburg Community Hospital on April 14, 2000 were causally
related to claimant's compensable December 2, 1999 injury by
accident; and (2) Dr. Solomon was an authorized treating
physician. Finding no error, we affirm the commission's
decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Causal Relationship of Medical Expenses
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if there is credible
evidence to support the finding." Ingersoll-Rand Co. v. Musick,
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). "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).
In holding employer responsible for medical treatments
rendered by Drs. Harding and Solomon and by Williamsburg
Community Hospital, the commission found as follows:
Dr. Harding[, a neurologist,] examined
claimant on several occasions and ordered
numerous diagnostic tests in his attempt to
discover the cause of the claimant's
neurological deficits. Dr. Harding
eventually ruled out that these deficits
were caused by a stroke. However, he
ultimately was unable to relate the
claimant's condition to a particular cause,
finding that they were consistent with both
a closed head injury such as that suffered
by the claimant in the original accident as
well as non-accidental ischemic disease.
The employer contends that it is not
responsible for the costs of care rendered
by Dr. Harding because it is unrelated to
the claimant's original accidental injury
. . . . We disagree. At best,
Dr. Harding's records reflect uncertainty
regarding whether the claimant's neurologic
problems were related to the December 1999
accident. Subsequently, Dr. Solomon clearly
diagnosed that the claimant's ataxia and
associated symptoms are related to that
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accident. The uncontroverted testimony of
both the claimant and his wife was that the
claimant did not suffer from any of these
symptoms and neurologic deficits prior to
the December 1999, accident. The employer
produced no evidence to refute this
testimony. None of the claimant's other
treating physicians have been able to
definitively rule out the accident as the
cause of these symptoms and deficits. Thus
we find that the preponderance of the
evidence supports the claimant's contention
that the care rendered by Dr. Harding is
causally related to the compensable
accident.
In his December 5, 2000 medical summary Dr. Solomon opined:
"My conclusion is that [William Bradby] suffered a closed head
injury with continued ataxia or unsteadiness of gait, cognitive
deficits or memory problems, and he is unable to work." Later
in his summary Dr. Solomon reiterated, "My impression as a
result of his injury on December 2, 1999, resulting in closed
head injury, he continues to have problems with balance, ataxia,
slurred speech and cognitive and memory loss, and I feel this is
a permanent disability." Dr. Solomon went on to state that in
his opinion the MRI imaging of Mr. Bradby's brain revealed some
isclemic white small vessel disease "but has not revealed any
evidence of acute CVA, so I do not believe he has had a CVA
causing his symptoms."
Thus, Dr. Solomon's medical records and opinions, coupled
with the testimony of claimant and his wife, constitute credible
evidence to support the commission's finding that claimant's
neurologic symptoms were causally related to his compensable
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December 2, 1999 injury by accident and not to a stroke. Based
upon that credible evidence, the commission could conclude that
the treatments rendered by Drs. Harding and Solomon and the
treatment rendered by Williamsburg Community Hospital on April
14, 2000 for claimant's neurologic symptoms were causally
related to claimant's December 1999 injury by accident.
Accordingly, we will not disturb the commission's finding that
employer is responsible for the medical treatments rendered by
Drs. Harding and Solomon and Williamsburg Community Hospital.
II. Dr. Solomon
In ruling that claimant was justified in selecting
Dr. Solomon as a treating neurologist, the commission found as
follows:
[T]he primary treating physician,
Dr. [Monique N.] Sessler, referred the
claimant to Dr. Harding for consideration of
the claimant's neurological complaints.
Once the employer took the position that the
treatment rendered by Dr. Harding was
unrelated, it refused to pay for his
treatment of the claimant. At that point,
the claimant became free to select his own
neurologist. He ultimately selected
Dr. Solomon because Dr. Harding refused
further treatment in light of the refusal of
the employer to pay for his care of the
claimant. The record does not substantiate
the employer's contention that the claimant
sought Dr. Solomon's care only because
Dr. Harding would not relate the claimant's
complaints to the original accident.
Rather, at most Dr. Harding remained
uncertain as to the causal connection, but
he never definitively ruled out such a
connection.
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"Where an employer initially denies that an injury is
compensable, the employee is entitled to select a treating
physician." Marriott Intern., Inc. v. Carter, 34 Va. App. 209,
216, 539 S.E.2d 738, 741 (2001). The fact that the commission
had previously directed claimant to chose a pain management
specialist is not dispositive of whether Dr. Solomon's treatment
for claimant's neurologic problems was compensable. After
employer denied liability for Dr. Harding's treatment on the
ground that claimant's neurologic problems were not causally
related to his compensable injury by accident, claimant was free
to select his own physician to treat those neurologic problems.
Claimant chose Dr. Solomon, whose treatment, as stated above,
was causally related to claimant's compensable injury by
accident. Accordingly, the commission did not err in ruling
that Dr. Solomon was an authorized treating physician.
For these reasons, we affirm the commission's decision.
Affirmed.
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