Shawnee Management Corp. v. Rhonda Hamilton

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker, Benton, Coleman, Elder,
Bray, Fitzpatrick and Overton
Argued at Richmond, Virginia
SHAWNEE MANAGEMENT CORPORATION AND
LIBERTY MUTUAL INSURANCE COMPANY
OPINION BY
v. Record No. 0434-96-3 JUDGE LARRY G. ELDER
NOVEMBER 4, 1997
RHONDA C. HAMILTON
UPON A REHEARING EN BANC
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
J. David Griffin (Fowler, Griffin, Coyne &
Coyne, P.C., on brief), for appellants.
George L. Townsend (Chandler, Franklin &
O'Bryan, on brief), for appellee.
Shawnee Management Corporation (employer) appeals an order
of the Workers' Compensation Commission awarding temporary total
disability benefits to Rhonda C. Hamilton (claimant). Employer
contends that the commission erred when it concluded that
claimant's failure to entirely cease smoking cigarettes so that
she could undergo back surgery was not a "refusal" of medical
care under Code § 65.1-603(B). Employer also contends that the
commission erred when it concluded that claimant justifiably
refused an offer of selective employment. A panel of this Court
reversed the commission's award, holding that claimant's failure
to stop smoking completely as directed by her physicians was an
unjustified refusal of the back surgery she needed in order to
return to work. See Shawnee Management Corp. v. Hamilton, 24 Va.
App. 151, 480 S.E.2d 773 (1997). We granted claimant a rehearing
en banc. For the reasons that follow, we affirm the commission's
award of benefits.
I.
FACTS
In October, 1991, claimant lived in Winchester, Virginia and
was employed as a crew person at a Hardee's Restaurant managed by
employer. Claimant slipped on a wet floor in the restaurant and
injured her back. The parties entered into a memorandum of
agreement for temporary total disability benefits. At the time
of her accident, claimant had smoked cigarettes regularly for
twenty years.
In January, 1993, claimant's treating physician, Dr. Zoller,
performed a "lumbar fusion" operation on claimant to treat her
back injury. Upon admission to the hospital for the surgery,
claimant ceased smoking cigarettes entirely and maintained her
abstinence from smoking for about eighteen months. About two
months after her surgery, claimant moved from Winchester to
Manassas, Virginia.
Claimant's recovery from the back surgery was not smooth.
During the surgery, she suffered "fairly significant
brachioplexus injuries" to both of her arms due to the
positioning of her body during the procedure. Her recovery from
these injuries took several months. In addition, while
rehabilitating her back, claimant experienced intermittent but
severe pain in her back, buttocks, and legs.
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On July 20, 1993, Dr. Zoller wrote to employer's insurer
that claimant "could be returned to some light duty work." Dr.
Zoller set forth numerous restrictions on any work performed by
claimant, including a limit on claimant's driving to "20 miles,
or 30 minutes, continuously, and no more than twice daily." On
August 11, employer sent a job description to Dr. Zoller
regarding a position it planned to offer claimant as a cashier at
a Hardee's Restaurant in Winchester. The job description
included several accommodations to match the restrictions on
claimant's work imposed by Dr. Zoller. Dr. Zoller approved the
job description on August 25. On September 9, claimant declined
employer's offer to return to work in the modified cashier's
position because it required a 90 minute commute each way from
Manassas to Winchester.
On September 13, 1993, employer filed an application for a
hearing to suspend claimant's disability benefits on the ground
that she had "refused selective employment within [her] physical
capacity." The commission subsequently suspended claimant's
benefits, but it did so on the ground that claimant had failed to
keep it informed of her current mailing address.
In December, 1993, claimant moved back to Winchester.
Sometime in mid-1994, she resumed smoking cigarettes to "calm her
nerves" when her son "got in trouble." Her consumption of
cigarettes increased to two packs per day.
On September 26, 1994, Dr. Zoller wrote that claimant
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continued to experience pain in her back and right leg and that
he had exhausted nearly all non-surgical options to treat her
pain. He referred claimant to Dr. Kostuik at the Johns Hopkins
Orthopaedic Center in Baltimore, Maryland for a second opinion.
On December 8, Dr. Kostuik examined claimant, concluded that
she had "a nonunion of her fusion," and opined that she might
benefit from an "anterior innerbody fusion." Dr. Kostuik gave
claimant "a good prognosis for recovery" if she underwent the
proposed operation. However, Dr. Kostuik told claimant that "she
has to stop smoking and try to [lose] some weight" before he
would perform the surgery.
On December 19, Dr. Zoller examined claimant and concurred
with Dr. Kostuik's opinion that an anterior innerbody fusion was
"appropriate" treatment. Like Dr. Kostuik, Dr. Zoller told
claimant that quitting smoking "altogether" was a precondition of
the proposed operation. When Dr. Zoller saw claimant again on
February 22, 1995, claimant stated that she was still smoking
cigarettes but that her consumption was "down to about 10
cigarettes a day."
On January 3, 1995, Dr. Zoller wrote to employer's insurer
that he had reconsidered his earlier opinion that claimant was
capable of light duty work. He stated:
I sent [claimant] back to work on July 20,
1993 assuming that possibly work would help
improve things, but this was probably a
mistake, and I think, in retrospect, it
probably would have been more worthwhile to
keep her on with Off-Work from that time
until the present time.
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* * * * * * *
I feel that [claimant] should be
considered off work the entire period of
time, never having been allowed to go back to
work.
On February 6, 1995, claimant filed a claim with the
commission for temporary total disability benefits beginning on
September 14, 1993, the day after the suspension date of her
earlier award. She alleged a change in condition and cited Dr.
Zoller's revised medical opinion that she "shouldn't have been
released to go back to work." Employer raised several defenses,
including that claimant had unjustifiably refused medical
treatment by failing to quit smoking and that claimant had
refused selective employment in September, 1993.
On June 8, 1995, a deputy commissioner held a hearing on
claimant's claim. At the hearing, claimant testified that since
Dr. Kostuik informed her that she must quit smoking, she had
reduced her consumption of cigarettes from two packs per day to
"about a quarter" pack per day. She testified that she was
"still continuing to try and stop altogether." There was no
evidence in the record that employer had ever offered or that
claimant had refused any medical treatment to assist her personal
effort to stop smoking.
The deputy commissioner denied claimant's claim. The deputy
commissioner first held that Dr. Zoller's revised medical opinion
that claimant's disability had always been "total" constituted a
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change in condition. However, the deputy commissioner also held
that claimant's failure to cease smoking entirely was an
unjustified refusal of the anterior innerbody fusion recommended
by both Dr. Kostuik and Dr. Zoller.
Claimant appealed, and the commission reversed. The
commission held that claimant's failure to stop smoking was not a
"refusal" of the proposed back surgery. It reasoned:
The evidence in this case shows no such
conscious or willful refusal [by claimant] to
follow the treatment recommendations of her
physicians regarding smoking. Rather, the
evidence shows that the claimant has reduced
her smoking habit by approximately 75%,
without the aid of any prescribed medical or
psychological programs, which we find
demonstrates a substantial personal effort.
. . . We are persuaded by this evidence that
the claimant has made reasonable efforts that
are continuing to try to end a habit . . .
ingrained by usage over a period of
approximately 24 years.
The commission also held that claimant's refusal of the cashier's
position offered to her in September, 1993, was justified because
claimant's commute at the time would have violated the driving
restrictions imposed by Dr. Zoller. The commission entered an
award of temporary total disability benefits in favor of claimant
retroactive to December 19, 1994, the date of the examination
that prompted Dr. Zoller to revise his medical opinion.
II.
REFUSAL OF MEDICAL CARE
Employer argues that the commission erred when it found that
claimant had not "refused" the back surgery she needed to return
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to work by failing to quit smoking entirely as of the date of the
hearing. Because credible evidence supports the commission's
finding that claimant had not refused to stop smoking, we find no
error.
Code § 65.2-603(B) bars a claimant from receiving further
compensation if the claimant unjustifiably refuses to accept
medical services provided by the employer. Whether or not a
claimant has "refused" medical treatment is a question of fact.
See Stump v. Norfolk Shipbuilding & Dry Dock Corp., 187 Va. 932,
934-35, 48 S.E.2d 209, 210 (1948) (treating the commission's
determination of whether a claimant has refused medical services
as a question of fact); see also Chesapeake Masonry Corp. v.
Wiggington, 229 Va. 227, 229-30, 327 S.E.2d 121, 122 (1985)
(holding that the commission's finding that the claimant
unjustifiably refused medical care was supported by credible
evidence and therefore binding on appeal). It is fundamental
that "factual findings of the commission are binding on appeal"
if supported by credible evidence. Spruill v. C.W. Wright
Constr. Co., 8 Va. App. 330, 332, 381 S.E.2d 359, 360 (1989); see
Code § 65.2-706(A).
We do not retry the facts before the
Commission nor do we review the weight,
preponderance of the evidence, or the
credibility of witnesses. If there is
evidence or reasonable inference that can be
drawn from the evidence to support the
Commission's findings, they will not be
disturbed by this Court on appeal, even
though there is evidence in the record to
support contrary findings of fact.
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Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d
507, 510-11 (1983).
We hold that the evidence was sufficient to support the
commission's finding that claimant's current unsuccessful attempt
to quit smoking was not a "conscious or willful refusal to follow
the treatment recommendations of her physicians regarding
smoking." Viewing the evidence in the light most favorable to
claimant, the prevailing party below, see R.G. Moore Bldg. Corp.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990), the
evidence proves that claimant was in the midst of an ongoing,
good faith effort to end her smoking habit at the time of the
hearing before the deputy commissioner. Claimant testified at
the hearing that she had smoked cigarettes for over 23 years.
Although she did quit smoking at the time of her first back
surgery in January, 1993, she testified that she resumed the
habit sometime in mid-1994. The evidence shows that in the seven
months between claimant's appointment with Dr. Kostuik, when she
was first directed to quit smoking, and the hearing before the
deputy commissioner, claimant reduced her daily consumption of
cigarettes by about 87%. Claimant testified that she was smoking
two packs of cigarettes per day at the time she first saw Dr.
Kostuik in December, 1994. Dr. Zoller wrote in his examination
notes on February 22, 1995 that claimant had reduced her smoking
to ten cigarettes per day. At the hearing on June 8, 1995,
claimant testified that she was smoking about a quarter of a pack
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per day and was still continuing her effort to "try and stop
altogether." In addition, the record fails to establish that
claimant rejected medical treatment that would have expedited her
complete abandonment of cigarettes or that employer offered such
treatment. In light of claimant's long history with cigarettes,
the sizable reduction in her smoking, and her testimony that she
had not abandoned her current effort to quit, credible evidence
supports the commission's finding that claimant had not "refused"
to comply with her physicians' directives to stop smoking.
III.
REFUSAL OF SELECTIVE EMPLOYMENT
Employer also argues that claimant unjustifiably refused
selective employment when she declined the cashier position
offered to her in September, 1993. See Klate Holt Co. v. Holt,
229 Va. 544, 545, 331 S.E.2d 446, 447 (1985); Talley v. Goodwin
Bros. Lumber Co., 224 Va. 48, 52, 294 S.E.2d 818, 820 (1982). We
disagree.
Relying on Dr. Zoller's revised medical opinion, the
commission concluded that claimant was totally disabled as of
December 19, 1994 and ordered benefits resumed at that date.
Based on this determination, no employment offered by employer
could possibly be suitable for claimant because claimant has no
residual capacity to work.
Because the commission held that claimant is totally
disabled, which employer does not contest on appeal, we hold that
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this issue of selective employment is now moot. Once a
controversy between litigants ceases to exist, "it is the duty of
every judicial tribunal not to proceed to the formal
determination of the apparent controversy . . . ." Hankins v.
Town of Va. Beach, 182 Va. 642, 643-44, 29 S.E.2d 831, 832
(1944).
For the foregoing reasons, we affirm the commission's award.
Affirmed.
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