City of Salem Health Services v. Skipper

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
CITY OF SALEM HEALTH SERVICES
AND VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION *
v. Record No. 1026-98-3 PER CURIAM
SEPTEMBER 22, 1998
OZAWA DIANA SKIPPER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Richard D. Lucas; T. Borden Ellis; Carter,
Brown & Osborne, on briefs), for appellants.
(Richard M. Thomas; Rider, Thomas,
Cleaveland, Ferris & Eakin, on brief), for
appellee.
City of Salem Health Services ("employer") contends that the
Workers' Compensation Commission ("commission") erred in (1)
finding that Ozawa D. Skipper ("claimant") proved that her
post-November 5, 1996 disability and medical treatment were
causally related to her compensable October 9, 1996 injury by
accident; (2) finding that the medical treatment rendered to
claimant by Drs. Cecil B. Knox, III, Verna M. Lewis, and Mary C.
Williams, and licensed professional counselor Susan Riggs, was
authorized; and (3) shifting the burden of proof to employer by
requiring it to establish that the medical treatment rendered by
Drs. Knox, Lewis, and Williams and counselor Riggs, was
unreasonable and unnecessary. Upon reviewing the record and the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
I. Causation
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). "The
actual determination of causation is a factual finding that will
not be disturbed on appeal if there is credible evidence to
support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989). "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).
In holding that claimant proved that her post-November 5,
1996 disability and medical treatment were causally related to
her compensable October 9, 1996 injury by accident, the
commission found as follows:
Deputy Commissioner Costa concluded that the
claimant suffered injuries in the October 9,
1996 accident which were aggravated by the
October 28, 1996 accident. We agree, and we
also conclude that the claimant's psychiatric
illness was caused by a combination of the
two accidents. . . . In this case, we find
that the claimant's psychiatric condition as
diagnosed by Dr. Williams was caused by both
of the accidents acting in concert. We find
her opinions more persuasive than Dr. Smith's
conclusions. We note that the claimant did
have prior traumatic events which occurred in
her life, but these were fairly distant in
time in comparison to the automobile
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accidents. Despite these earlier traumas,
the claimant was able to continue to work and
function until the two October accidents.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 214 (1991). In its role as fact finder, the
commission was entitled to weigh the medical evidence, to accept
the opinions of Drs. Knox, Lewis, and Williams, and to reject any
contrary medical opinions. The opinions of Drs. Knox, Lewis, and
Williams constitute credible evidence to support the commission's
decision. "The fact that there is contrary evidence in the
record is of no consequence if there is credible evidence to
support the commission's finding." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
II. and III. Medical Treatment
Uncontradicted credible evidence proved that employer
disclaimed liability for any medical treatment after claimant's
second accident and failed to offer claimant a panel of
physicians when Dr. Louis J. Castern, the treating physician,
discharged claimant from his care on November 5, 1996. Under
these circumstances, claimant was entitled to choose her own
physician. See Bassett Burkeville Veneer v. Slaughter, 21 Va.
App. 575, 578-79, 466 S.E.2d 127, 129 (1996).
Moreover, credible evidence established that claimant first
sought treatment from Riggs upon employer's recommendation and
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then Dr. Knox, who referred her to Drs. Williams and Lewis.
Accordingly, the commission properly ruled that the treatment
rendered to claimant by Drs. Knox, Williams, and Lewis and
counselor Riggs, was authorized.
We also find that the commission did not impermissibly shift
the burden of proof to employer. The medical records of Drs.
Knox, Williams, and Lewis, and counselor Riggs, provided credible
evidence to prove that their medical treatment was reasonable and
necessary. The commission did not err in concluding that
employer's evidence failed to rebut claimant's medical evidence.
In addition, the commission did not err in declining to address
the issue of a change in treating physicians where employer
failed to raise that issue at the hearing before the deputy
commissioner.
For these reasons, we affirm the commission's decision. 1
Affirmed.
1
In her brief, claimant "asks that she be awarded interest
on all payments delayed by the appeal in accordance with the
provisions of [Code] Section 65.2-707 . . . ." We need not rule
on this request. The provisions of the code section operate as a
matter of law. We leave it to the commission to oversee the
enforcement of those provisions.
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