Anastasis S. Michael, Jr. v. George Keener Masonry ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia
ANASTASIS S. MICHAEL, JR.
MEMORANDUM OPINION * BY
v. Record No. 1533-96-2 JUDGE NELSON T. OVERTON
JANUARY 7, 1997
GEORGE KEENER MASONRY AND
UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Daniel E. Lynch (Vasiliki Moudilos; Williams
& Pierce, on brief), for appellant.
Christopher D. Eib, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Richard L. Walton, Jr., Senior
Assistant Attorney General; John J. Beall,
Jr., Senior Assistant Attorney General, on
brief), for appellee Uninsured Employer's
Fund.
No brief or argument for appellee George
Keener Masonry.
Anastasis S. Michael, Jr., appeals the ruling of the
Workers' Compensation Commission denying him benefits on the
grounds that he unjustifiably refused medical treatment. Finding
no error, we affirm.
The parties are fully conversant with the record to this
case, and a recitation of the facts is unnecessary to this
memorandum opinion.
Guided by well established principles, we construe the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence in the light most favorable to the party prevailing
below. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.
App. 503, 504, 339 S.E.2d 916, 916 (1986). "If there is
evidence, or reasonable inferences can be drawn from the
evidence, to support the Commission's findings, they will not be
disturbed on review, even though there is evidence in the record
to support a contrary finding." Morris v. Badger Powhatan/Figgie
Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986); see
Code § 65.2-706. "In determining whether credible evidence
exists," this Court will not "retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation
omitted).
Code § 65.2-603(B) aims to "place the cost of medical care
on the employer and to restore the employee's good health" so
that he may return to work. Richmond Memorial Hosp. v. Allen, 3
Va. App. 314, 318, 349 S.E.2d 419, 422 (1986) (interpreting
former Code § 65.1-88(B)). "It penalizes an employee 'who
unjustifiably refuse[s] reasonable and necessary medical
treatment.'" Holland v. Virginia Bridge & Structures, 10 Va.
App. 660, 663, 394 S.E.2d 867, 868 (1990) (quoting Davis v. Brown
& Williamson Tobacco Co., 3 Va. App. 123, 127, 348 S.E.2d 420,
421 (1986)). When determining whether a refusal of medical
treatment was justified, we look not at whether the recommended
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procedure was medically justified, but rather whether the
patient's refusal to submit to it was justified. See Holland, 10
Va. App. at 662, 394 S.E.2d at 868. "The matter of justification
must be considered from the viewpoint of the patient and in the
light of the information which was available to him." Id.
We do not have before us a case where the employee lacked
complete medical consultation and assurance. See, e.g., Holland,
10 Va. App. at 663, 394 S.E.2d at 868. Instead, Michael saw
several doctors, all of whom assured him of the low chance of
complications and the high probability of success. Furthermore,
Michael's reasons for his fear of surgery changed from time to
time without any apparent logic. Indeed, the commission noted
that Michael "testified that he would have accepted the surgery
if it had been prescribed closer in time to the work accident."
Considering this with all the other facts before the commission,
we cannot say that the commission erred in finding that Michael's
claim of fear constituted an unreasonable refusal of medical
treatment.
Affirmed.
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