Linda Wytiaz v. Edison Brothers Stores, Inc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
LINDA WYTIAZ
MEMORANDUM OPINION * BY
v. Record No. 1672-95-2 JUDGE RICHARD S. BRAY
APRIL 2, 1996
EDISON BROTHERS STORES, INC. and
LUMBERMENS MUTUAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Laura Large Geller (Geoffrey R. McDonald;
McDonald & Snesil, P.C., on brief), for
appellant.
Timothy P. Murphy (William W. Nexsen;
Stackhouse, Smith & Nexsen, on brief), for
appellees.
Linda Wytiaz (claimant) appeals a ruling by the Workers'
Compensation Commission (commission) that Edison Brothers Stores,
Inc. and its insurer, Lumbermens Mutual Casualty Company
(employer), were not responsible for the cost of certain
unauthorized medical treatment provided claimant incidental to a
compensable injury. Finding no error, we affirm the decision of
the commission.
The parties are fully conversant with the record in this
case and we recite only those facts necessary to a disposition of
this appeal.
On appeal, we construe the evidence in the light most
favorable to the party prevailing below, employer in this
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
instance. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App.
503, 504, 339 S.E.2d 916, 916 (1986).
From a panel of physicians provided by employer incidental
to her compensable accidental injuries, claimant selected Dr.
Frank G. Burns, Jr., an orthopedic surgeon, as treating
physician. See Code § 65.2-603(A)(1). Dr. Burns referred
claimant to Dr. Raymond Troiano, a neurologist, and Dr. Warren
Foer, a neurosurgeon, and employer does not challenge the
attendant costs. However, employer declined responsibility for
treatment provided claimant by Dr. Raymond Iglecia, a
psychiatrist and neurologist who had previously treated claimant
for "major depression, chronic pain[,] and polysubstance abuse
secondary to [an unrelated] work . . . injury." On March
7, 1994, Dr. Troiano noted that he "referred [claimant] back to
Dr. Iglecia for pain management because [she] requested continued
treatment by him." (Emphasis added). In correspondence to Dr.
Burns dated March 28, 1994, Dr. Troiano wrote:
[Claimant] would like to go back to Dr. Iglecia for
further treatment, but she has been told to come to see
me because of her continued pains for neurologic
evaluation . . . . Mrs. Wytiaz has been treated
previously by Dr. Iglecia . . . so she is referred back
to Dr. Iglecia for his treatment of this problem, since
this is where Mrs. Wytiaz wants to receive treatment.
(Emphasis added).
In a March 8, 1994 office note, Dr. Burns recorded, "I
advised [claimant] that I wanted her to see a neurologist - she
states she sees Dr. Iglecia - my book lists him as a
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psychologist. I told her I can only advise her what to do I can
not [sic] make her do it." Dr. Burns' office advised employer on
March 22, 1994, that "[claimant] said that she would make an
appointment with Dr. Iglecia today . . . . Dr. Burns was not
familiar with this doctor. He would not have referred her to him
because he does not use his services." Dr. Burns wrote employer
on May 20, 1994, that claimant "[f]or some reason . . . has a lot
of confidence in Dr. Iglecia although . . . she states he treated
her from 1988-90 for back problems with very little improvement.
Perhaps it is psychological support she wishes."
It is well established that "'[n]either the employer nor its
insurance carrier may limit the treating physician in the medical
specialist, or treating facilities to which claimant may be
referred for treatment.'" Jensen Press v. Ale, 1 Va. App. 153,
158, 336 S.E.2d 522, 525 (1985) (citation omitted). If an
industrial accident is causally related to the complaints that
give rise to a referral, "the employer is financially responsible
for the medical attention which the attending physician deems
necessary . . . ." Volvo White Truck Corp. v. Hedge, 1 Va. App.
195, 200, 336 S.E.2d 903, 906 (1985). Whether a treating
physician has made a compensable referral is a question of fact,
and "[w]e are bound by the Commission's . . . finding if
supported by credible evidence." Jensen Press, 1 Va. App. at
158-59, 336 S.E.2d at 525.
Here, the commission concluded that "Dr. Burns and Dr.
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Troiano referred . . . claimant to Dr. Iglecia only to
accommodate her wishes." The referral was, therefore, prompted
by claimant's insistence rather than medical necessity, and
"employer [was] not responsible for treatment provided by Dr.
Iglacia [sic]." This determination by the commission enjoys
support in the evidence and will not be disturbed on appeal.
Accordingly, we affirm the decision.
Affirmed.
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