Town of Washington Water Works v. Pullen

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
TOWN OF WASHINGTON WATER WORKS
AND VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION *
v. Record No. 1773-98-4 PER CURIAM
DECEMBER 15, 1998
JOHNNY RAY PULLEN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ralph L. Whitt, Jr.; John T. Cornett;
Williams, Lynch & Whitt, on briefs), for
appellants.
(Lawrence J. Pascal; Ashcraft & Gerel, on
brief), for appellee.
Town of Washington Water Works and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission ("commission") erred in (1) finding that the trigger
point injection therapy administered to Johnny Ray Pullen
("claimant") by Dr. Larry L. Stephenson was reasonable and
necessary medical treatment; (2) refusing to order a change in
treating physicians; and (3) failing to appoint a disinterested
physician to examine and evaluate claimant pursuant to Code
§ 65.2-606. 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. See
Rule 5A:27.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
In holding employer responsible for Dr. Stephenson's
treatment, the commission found as follows:
[W]e concur with the Deputy Commissioner's
opinion that trigger point injection therapy
from Dr. Stephenson is reasonable and
necessary under the circumstances. Further
we concur with the conclusion that this was
provided as a "stop-gap" measure. Dr.
Stephenson had referred the claimant for
numerous diagnostic tests and several
referrals including to Dr. [David E.] Couk
and Dr. [James N.] Campbell without
alternative therapy being suggested. Dr.
Stephenson's notes reflect that other modes
of treatment, including physical therapy and
acupuncture, were not productive and that the
claimant suffered an intolerance to some
medication prescribed. From his notes it is
clear the doctor recognized the injections
were not curative but also recognized they
were providing the claimant relief.
In its role as fact finder, the commission was entitled to
weigh the medical evidence and to accept the opinions of Dr.
Stephenson, the treating physician. The commission was also
entitled to reject the contrary opinions of Drs. Stuart R. Stark
and Roger V. Gisolfi regarding the necessity and reasonableness
of continuing trigger point injection therapy. "Questions raised
by conflicting medical opinions must be decided by the
commission." Penley v. Island Creek Coal Co., 8 Va. App. 310,
318, 381 S.E.2d 231, 236 (1989). Dr. Stephenson's medical
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records and opinions provide credible evidence to support the
commission's findings.
Because the commission's findings are supported by credible
evidence, they are binding and conclusive on appeal. See James
v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d
487, 488 (1989).
II.
Unless we can say as a matter of law that employer's
evidence sustained its burden of proving that a change in
treating physicians was warranted, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying employer's request for a change in treating
physicians, the commission found as follows:
Although there is some disagreement by other
physicians with Dr. Stephenson's treatment,
there is no evidence that adequate treatment
is not being rendered. Dr. Stephenson
recognized for approximately two years the
desirability of a referral which has been
routinely denied by the insurer. We concur
with the Deputy Commissioner's finding that
the claimant should be allowed to continue
treating with Dr. Stephenson and should be
referred to Johns Hopkins for continued
evaluation by Dr. Campbell.
No evidence proved that Dr. Stephenson's treatment was
inadequate. To the contrary, credible evidence established that
his treatment was the only modality that relieved claimant's pain
symptoms, albeit temporarily. Moreover, Dr. Stephenson's medical
records provide credible evidence to support the commission's
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finding that Dr. Stephenson's treatment plan did not move forward
because employer repeatedly ignored Dr. Stephenson's
recommendations that claimant be referred to Dr. Campbell at
Johns Hopkins for evaluation and possible treatment.
Based upon this record, we cannot say as a matter of law
that the commission erred in refusing to order a change in
treating physicians.
III.
Because the commission did not err in holding that Dr.
Stephenson's treatment was reasonable and necessary and in
ordering that claimant be referred to Dr. Campbell for further
evaluation, we cannot say that the commission abused its
discretion in not appointing a disinterested physician to examine
claimant pursuant to Code § 65.2-606. Under the circumstances of
this case, no evidence established that such an examination was
justified or necessary.
For these reasons, we affirm the commission's decision.
Affirmed.
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