Jerome Shaw v. Tarmac Lone Star ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
JEROME SHAW
v. Record No. 2176-96-1 MEMORANDUM OPINION *
PER CURIAM
TARMAC LONE STAR FEBRUARY 11, 1997
AND
LIBERTY MUTUAL FIRE INSURANCE
COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jerome Shaw, pro se, on brief).
(Glenn S. Phelps; Thompson, Smithers, Newman &
Wade, on brief), for appellees.
Jerome Shaw (claimant) contends that the Workers'
Compensation Commission (commission) erred in denying his request
for a change in treating physicians. Upon reviewing the record
and the briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Whether a treating physician has released or abandoned his
patient generally is determined by the express intent of the
physician. In some cases, the total circumstances must be
analyzed in order to determine whether discharge, release, or
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
abandonment of the patient was intended. This determination is a
factual one which must be proved by clear and convincing
evidence. Jensen Press v. Ale, 1 Va. App. 153, 157, 336 S.E.2d
522, 524 (1985).
In denying claimant's request for a change in treating
physicians, the commission found as follows:
[C]laimant will not be heard to complain that
treatment from Dr. [A.W.K.] Durrani has been
unproductive and that his condition has even
deteriorated under that physician's care, and
from specialists to whom he was referred for
treatment, when it is clear from the record
that the claimant has failed to comply with
recommendations from the physicians that were
to help resolve and ameliorate his injury.
We also do not accept as credible his bare
statement that Dr. Durrani has declined to
provide treatment because the physician was
not paid for his services. The file does
contain a request from Dr. Durrani to the
Commission in 1989 seeking to recover for
nonpayment of services, but nothing
afterwards. There is also nothing in Dr.
Durrani's later medical records or reports to
suggest that care would not be provided, if
the claimant requests and is prepared to
accept it.
The commission also found that the fifteen mile distance from
claimant's home in Spring Grove, Virginia to Dr. Durrani's office
in Hopewell, Virginia was not an unreasonable distance for
claimant to travel for regular medical treatment from the
authorized physician.
The commission's findings are amply supported by the medical
records and will not be disturbed on appeal. Because claimant
failed to present any clear and convincing evidence of
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abandonment or inadequate treatment by Dr. Durrani, we cannot
find as a matter of law that the commission erred in denying
claimant's request for a change in treating physicians.
For these reasons, we affirm the commission's decision.
Affirmed.
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