Sandra T. Johnson v. Cracker Barrel, etc. ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Overton
Argued at Salem, Virginia
SANDRA T. JOHNSON
v. Record No. 0124-95-3 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
CRACKER BARREL OLD COUNTRY STORE DECEMBER 12, 1995
AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Terry L. Armentrout (Roger Ritchie &
Partners, P.L.C., on brief), for appellant.
J. Ross Newell, III (Thomas G. Bell, Jr.;
Timberlake, Smith, Thomas & Moses, P.C., on
brief), for appellees.
Sandra Johnson appeals from the commission's opinion
ordering her to choose a new treating physician. She contends
that the commission (1) erred in ordering her to change
physicians without giving her notice and an opportunity to defend
and (2) lacked authority to order a change of physicians on its
own motion. We vacate the order of the commission.
Johnson injured her back while working for Cracker Barrel.
Cracker Barrel did not supply her with a panel of physicians
within the statutorily required time period, and Johnson
independently sought the services of Dr. Pleskonko, a
chiropractor. Two months later, Cracker Barrel requested that
Johnson choose a physician from its offered panel. Johnson
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
refused. Cracker Barrel filed an application for hearing raising
the issue of whether Dr. Pleskonko was an authorized physician.
The deputy commissioner found that the employer had not
timely offered a panel of physicians and that Johnson was
entitled to receive treatment from Dr. Pleskonko. However, the
deputy commissioner ordered Johnson to select a physician from a
new panel to be offered by the employer because of "concern over
[Dr. Pleskonko's] type of maintenance treatment." The commission
affirmed the decision, and allowed Dr. Pleskonko's expenses up to
the date of the hearing. However, the commission also ordered
the employer to offer a new panel of physicians and ordered
Johnson to select one as her treating physician.
The commission does have statutory authority to order a
change in physicians. The relevant portion of the Code states:
As long as necessary after an accident, the
employer shall furnish or cause to be
furnished, free of charge to the injured
employee, a physician chosen by the injured
employee from a panel of at least three
physicians selected by the employer and such
other necessary medical attention. . . . The
employee shall accept the attending
physician, unless otherwise ordered by the
commission, and in addition, such surgical
and hospital service and supplies as may be
deemed necessary by the attending physician
or the commission.
Code § 65.2-603(A)(1). We do not believe that an expansive
reading of the statute is required to conclude that upon proper
application and in appropriate circumstances the commission may
order a claimant to change physicians. Indeed, the commission
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itself has stated that it will order a change in circumstances if
(1) inadequate treatment is being rendered; (2) it appears that
specialized treatment is necessary and not being provided; (3) no
improvement in the health condition is being made without an
adequate explanation; (4) conventional modalities of treatment
are not being used; (5) no plan of treatment for long-term
disability exists; or (6) a physician fails to cooperate with
discovery proceedings. Powers v. J.B. Constr., 68 O.I.C. 208,
211 (1989) (construing § 65.1-88 (now § 65.2-603)).
In this case, however, the employer did not request that the
commission order a change in physicians. Thus, Johnson had no
notice from either the employer or the commission that the issue
of change in physicians was to be considered. Johnson was
entitled to the opportunity to be heard and present evidence
before having such a change made. Cf. Celanese Fibers Co. v.
Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 689-90 (1985)
(refusing to consider an issue not stated in the application).
"An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections." Oak Hill Nursing Home,
Inc. v. Back, 221 Va. 411, 417, 270 S.E.2d 723, 726 (1980)
(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314-15 (1950) (citations omitted)).
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In response to the actual question posed by the employer,
the commission ordered that Dr. Pleskonko be paid for his
services until the date of the deputy commissioner's hearing,
deeming him to be an authorized physician. As such, Dr.
Pleskonko remains the authorized physician because his removal
has been vacated by this order, subject to future motions by the
parties and the orders of the commission.
Accordingly, we hold that the commission erred in changing
Dr. Pleskonko's status as an authorized physician without first
giving notice to Johnson and providing her an opportunity to
defend against the change. See Sergio's Pizza v. Soncini, 1 Va.
App. 370, 375-76, 339 S.E.2d 204, 207-08 (1986) (discussing
proper notice of an issue). We therefore vacate the commission's
decision and remand for such further actions as the parties to
the proceeding and the commission may elect.
Reversed and remanded.
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