Fairfax County School Board v. Susan Elaine Manola

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia
FAIRFAX COUNTY SCHOOL BOARD
v. Record No. 1119-02-4
SUSAN ELAINE MANOLA MEMORANDUM OPINION∗ BY
JUDGE ROSEMARIE ANNUNZIATA
SUSAN ELAINE MANOLA JANUARY 28, 2003
v. Record No. 1138-02-4
FAIRFAX COUNTY SCHOOL BOARD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael N. Salveson (Hunton & Williams, on
briefs), for Fairfax County School Board.
Kathleen G. Walsh (Law Offices of Kathleen
Walsh, on briefs), for Susan Elaine Manola.
The Fairfax County School Board ("employer") appeals the
decision of the Workers' Compensation Commission ("commission"),
finding employer responsible for the cost of medical treatment
provided to Susan Manola ("claimant") from November 2000 through
July 16, 2001, and ordering employer to provide claimant with a
new panel of physicians. Employer appeals the decision on the
following grounds: 1) the treatment claimant received between
November 2000 and July 2001 was not reasonable and necessary, 2)
claimant did not have a valid referral for her treatment between
____________________
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
November 2000 and July 2001, and 3) a new panel of physicians
was not required because claimant already had an authorized
treating physician. Claimant cross-appeals on the ground that
the trial court should have required employer to prove
claimant's treatment by one doctor, Dr. Levin, was inappropriate
in order to justify terminating his treatment.
Background
On appeal from a decision of the commission, we review the
evidence in the light most favorable to claimant, the party
prevailing below. Lynchburg Foundry Co. v. Goad, 15 Va. App.
710, 712, 427 S.E.2d 215, 217 (1993). We will uphold the
commission's decision so long as there is credible evidence to
support it. Id. "In determining whether credible evidence
exists, the appellate court does 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).
Claimant is a music teacher. On February 2, 2000, she
sustained a compensable injury by accident when she slipped on
ice at work and fell on her outstretched arm. Claimant
complained of pain in her hand, wrist, arm, neck, shoulder and
back resulting from the accident. After claimant injured
herself, employer presented her with a panel of physicians and
she selected Dr. Edward Alexander, an orthopedic surgeon, as her
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treating physician. 1 On February 14, 2000, claimant saw
Dr. Alexander for the first time. Dr. Alexander referred
claimant to Dr. Steven Levin, at her request, for manipulation
and trigger point injections because he had treated her for
similar problems since 1975.
On November 13, 2000, Dr. Alexander contacted employer's
claims representative and questioned whether claimant's
continued treatment with Dr. Levin was warranted. Dr. Alexander
stated in his letter to the representative:
[A]t this point, I find it difficult to
justify further treatments. The [claimant]
still complains of pain in her neck, but she
has very little in the way of objective
findings to substantiate these allegations.
At this point, I feel that though she has
not reached maximum medical improvement that
her treatment with Dr. Levin should be
sufficient at least as of the first of
November and I find it difficult to justify
further treatments. Probably, you should
communicate with Dr. Levin to find out his
opinion on this and what his justifications
are for continuing treatment.
Dr. Levin immediately issued a report in favor of
continuing claimant's treatment, stating she had made
improvements under his care and that she continued to require
his medical treatment. When claimant expressed concern about
Dr. Alexander's intent to curtail her treatments with Dr. Levin,
Dr. Alexander recommended she visit the Center for Physical
1
Under Code § 65.2-603, employer is required to provide
employee with a panel of at least three physicians from which to
select a treating physician.
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Medicine and Pain Management ("CPMPM") for a consultation to
determine the appropriateness of claimant's treatment with
Dr. Levin.
Claimant saw Dr. Alexander on January 4, 2001, and he
reported she was "depressed . . . tearful . . . and very angry"
because she had not received treatment from Dr. Levin in several
weeks. He noted claimant required "some sort of treatment" and
instructed her to treat with Dr. Levin every two weeks pending
the completion of an evaluation by Dr. James Johnsen at CPMPM.
On January 4, 2001, claimant saw Dr. Johnsen, who performed
an electrodiagnostic consultation on claimant that was normal.
He issued a report stating claimant had seen Dr. Levin 46 times
and was still "quite symptomatic." He recommended a more
limited approach to treatment, stating "My opinion is that,
after 46 treatments with manipulation [with Dr. Levin], I do not
feel that any more treatments will have any effect on the
patient's underlying condition . . . ."
On February 26, 2001, Dr. Alexander contacted employer's
claims representative and stated he "would tend to agree" with
Dr. Johnsen. He told the representative that treatment with
Dr. Levin should be terminated, but failed to provide a
definitive date when treatment was to cease.
Claimant returned to Dr. Alexander on February 26, 2001.
She told him she was unhappy with Dr. Johnsen, had no confidence
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in him, and did not want to be treated by him. Dr. Alexander
reported in his physician's notes from that day:
I am not doing anything further for her at
this time and she does not want to be
treated by Dr. Johnsen, so this essentially
leaves Dr. Levin who has been treating her
and is the only one who seems to be having
any kind of success. I do not really need
to see her anymore and I would recommend
that Dr. Levin be considered her treating
physician barring periodic evaluations to
determine her progress. She seems to be
doing better, she is working, so there is
something to be said for her success.
Dr. Levin treated claimant 29 times between January 8, 2001
and June 14, 2001. His reports indicate claimant improved
slightly under his care, but upon each return visit, her
complaints were similar to those in her previous visit.
In July 2001, Dr. Alexander found that Dr. Levin's course
of treatment was not reasonable and necessary, stating "there
must be an endpoint" and that treatment by Dr. Levin should
cease after July 16, 2001 because claimant was not "getting any
better."
The deputy commissioner concluded that Dr. Levin's
treatment was "neither authorized, reasonable, nor necessary"
after November 1, 2000. The full commission reversed and found
the employer was responsible for Dr. Levin's treatment after
November 1, 2000. The commission further found Dr. Levin's
treatment was not reasonable or necessary after July 16, 2001.
Finally, the commission ordered employer to offer claimant a new
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panel of physicians because Dr. Alexander "had ceased his role
as treating physician."
Analysis
I. Referral
Employer argues that Dr. Alexander did not refer claimant
to Dr. Levin, claiming he merely acknowledged that she preferred
his treatment and acquiesced to her wishes. We disagree and
find credible evidence supports the commission's finding that
Dr. Alexander referred claimant to Dr. Levin and that the
referral continued without revocation until July 16, 2001.
The employer's responsibility for medical expenses under
Code § 65.2-603 depends upon "(1) whether the medical service
was causally related to the industrial injury; (2) whether such
other medical attention was necessary; and (3) whether the
treating physician made a referral of the patient." Volvo White
Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906
(1985); Code § 65.2-603. A claimant bears the burden of proof
on these issues by a preponderance of the evidence. McGregor v.
Crystal Food Corp., 1 Va. App. 507, 508, 339 S.E.2d 917, 918
(1986). Claimant selected Dr. Alexander as her treating
physician from the panel provided to her by employer.
Therefore, Dr. Alexander was vested with the authority to refer
claimant to specialists and to determine whether medical
attention was authorized, reasonable, and necessary. See Jensen
Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525 (1985)
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(decided under former Code § 65.1-88, predecessor to Code §
65.2-603) ("[M]edical management of the claimant is to be
directed by the treating physician . . . .").
Viewing the evidence in the light most favorable to
claimant, we find credible evidence supports the commission's
conclusion that claimant had a valid, continuous referral from
Dr. Alexander to treat with Dr. Levin from November 2000 until
July 16, 2001. Dr. Alexander first referred claimant to
Dr. Levin on February 14, 2000, shortly after her accident. In
November 2000, Dr. Alexander questioned whether treatments with
Dr. Levin should continue, but he did not establish a specific
end date. Indeed, on January 4, 2001, Dr. Alexander explicitly
recommended claimant continue to treat with Dr. Levin, when he
reported "I would recommend that she re-institute the treatments
with Dr. Levin approximately every two weeks . . . . "
Dr. Alexander saw claimant again on February 26, 2001 and, in
his notes from the visit, wrote: "I am not doing anything for
her at his time . . . so this essentially leaves Dr. Levin, who
has been treating her and is the only one who seems to be having
any kind of success."
We further find the evidence in the record supports the
commission's determination that Dr. Alexander revoked his
referral to Dr. Levin effective July 16, 2001. At that time,
Dr. Alexander found the treatment was no longer "reasonable and
necessary" and stated it should end on July 16, 2001.
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II. Reasonable and Necessary Medical Attention
The commission awarded claimant benefits for medical
expenses she incurred from November 2000 through July 16, 2001.
Employer appeals the ruling on the ground that claimant's
treatment by Dr. Levin between those dates was not reasonable
and necessary medical attention within the meaning of Code
§ 65.2-603. Because the commission made no findings as to the
necessity or reasonableness of claimant's medical treatment for
that time period, and we cannot determine from the record that
it considered these criteria before making its award, the
commission's award was erroneous. 2
III. New Panel of Physicians
Employer further contends the commission erred when it
required employer to provide a new panel of physicians to
claimant after Dr. Alexander ceased treating her. We disagree.
In the case at bar, the evidence establishes that
Dr. Alexander ceased being claimant's treating physician on
February 26, 2001. On that date, Dr. Alexander told claimant to
continue her treatments with Dr. Levin and recommended that
"Dr. Levin be considered her treating physician . . . ." On
2
The deputy commissioner found that claimant's treatment
between November 2000 and July 16, 2001 was not "authorized,
reasonable or necessary." Although the full commission stated
it "affirmed in part and reversed in part" the deputy
commissioner's opinion, the commission did not make clear
whether it reversed the deputy commissioner's finding that the
medical treatment for those dates was unreasonable and
unnecessary.
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July 16, 2001, however, Dr. Alexander revoked his referral to
Dr. Levin when he stated Dr. Levin's treatment was not
reasonable and necessary. Thus, as of July 16, 2001, claimant
no longer had a treating physician and required a new panel from
which to select a new physician. See, e.g., H.J. Holz & Son,
Inc. v. Dumas-Thayer, 37 Va. App. 645, 656, 561 S.E.2d 6, 15-16
(2002).
IV. Claimant's Cross Appeal
Claimant cross-appeals on the ground that the commission
erred when it failed to require employer to prove Dr. Levin's
treatment was "inappropriate" in order to terminate his
compensable treatment of claimant. 3
Code § 65.2-603 states: "[a]s long as necessary after the
accident, the employer shall furnish or cause to be furnished,
free of charge to the injured employee, a physician . . . and
such other necessary medical attention." "Whether 'such other
medical attention' be deemed necessary is for the attending
physician or . . . commission to determine . . . ." Jensen
Press, 1 Va. App. at 159, 336 S.E.2d at 525 (quoting Code §
65.1-88, predecessor to Code § 65.2-603). Therefore, when a
treating physician determines claimant's medical attention is no
longer "necessary and reasonable," an employer is no longer
3
Claimant uses the term "inappropriate" rather than the
statutory terms "reasonable and "necessary." For the purposes
of this opinion, we treat the issue as one addressing the
statutory requirements.
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required to cover claimant's medical expenses. Volvo White
Truck Corp., 1 Va. App. at 200, 336 S.E.2d at 906.
In the case at bar, the commission found that claimant's
treating physician, Dr. Alexander, determined Dr. Levin's
treatment would not be "reasonable and necessary" after July 16,
2001. The employer, thus, was no longer responsible for medical
expenses claimant incurred for Dr. Levin's treatment. There is
credible evidence to support the commission's finding.
Throughout claimant's treatment by Dr. Levin, Drs. Alexander and
Johnsen repeatedly expressed doubts that the treatment was
necessary and reasonable. As early as November 2000,
Dr. Alexander stated he could not justify Dr. Levin's treatment
after November 2000. As the commission noted, "after an
additional eight months of almost weekly care by Dr. Levin,
Dr. Alexander reiterated that his ongoing treatment was
unreasonable and unnecessary. Dr. Johnsen concurred with
Dr. Alexander's opinion in January 2001." Thus, the medical
records and opinions of Drs. Alexander and Johnsen provide
credible evidence to support the commission's finding that
claimant's treatment after July 16, 2001 was not reasonable or
necessary.
V. Conclusion
In summary, we find credible evidence supports the
commission's determination that claimant had a valid referral for
treatment with Dr. Levin from November 2000 through July 16, 2001
and that the referral was revoked effective July 16, 2001.
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Additionally, the evidence supports the commission's finding that
Dr. Levin's treatment after July 16, 2001 was no longer
reasonable and necessary and, thus, was not compensable.
We reverse the commission's award for benefits from November
2000 through July 16, 2001 on the ground that it made no findings
that treatment for that time period was reasonable and necessary.
We remand to the commission for further consideration of the
issue.
Finally, we affirm the commission's decision to award
claimant a new panel of physicians.
Affirmed, in part,
reversed, in part
and remanded.
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