Anastasis S. Michael, Jr. v. George Keener Masonry

• Court: Court of Appeals of Virginia
• Decided: January 7, 1997
• Docket: 1533962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Overton Argued at Richmond, Virginia

ANASTASIS S. MICHAEL, JR. MEMORANDUM OPINION * BY v. Record No. 1533-96-2 JUDGE NELSON T. OVERTON JANUARY 7, 1997 GEORGE KEENER MASONRY AND UNINSURED EMPLOYER'S FUND

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Daniel E. Lynch (Vasiliki Moudilos; Williams & Pierce, on brief), for appellant.

Christopher D. Eib, Assistant Attorney General (James S. Gilmore, III, Attorney General; Richard L. Walton, Jr., Senior Assistant Attorney General; John J. Beall, Jr., Senior Assistant Attorney General, on brief), for appellee Uninsured Employer's Fund.

No brief or argument for appellee George Keener Masonry.

Anastasis S. Michael, Jr., appeals the ruling of the

Workers' Compensation Commission denying him benefits on the

grounds that he unjustifiably refused medical treatment. Finding

no error, we affirm.

The parties are fully conversant with the record to this

case, and a recitation of the facts is unnecessary to this

memorandum opinion.

Guided by well established principles, we construe the

* Pursuant to Code § 17-116.010 this opinion is not

designated for publication. evidence in the light most favorable to the party prevailing

below. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.

App. 503, 504, 339 S.E.2d 916, 916 (1986). "If there is

evidence, or reasonable inferences can be drawn from the

evidence, to support the Commission's findings, they will not be

disturbed on review, even though there is evidence in the record

to support a contrary finding." Morris v. Badger Powhatan/Figgie

Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986); see

Code § 65.2-706. "In determining whether credible evidence

exists," this Court will 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) (citation

omitted).

Code § 65.2-603(B) aims to "place the cost of medical care

on the employer and to restore the employee's good health" so

that he may return to work. Richmond Memorial Hosp. v. Allen, 3

Va. App. 314, 318, 349 S.E.2d 419, 422 (1986) (interpreting

former Code § 65.1-88(B)). "It penalizes an employee 'who

unjustifiably refuse[s] reasonable and necessary medical

treatment.'" Holland v. Virginia Bridge & Structures, 10 Va.

App. 660, 663, 394 S.E.2d 867, 868 (1990) (quoting Davis v. Brown

& Williamson Tobacco Co., 3 Va. App. 123, 127, 348 S.E.2d 420,

421 (1986)). When determining whether a refusal of medical

treatment was justified, we look not at whether the recommended

- 2 - procedure was medically justified, but rather whether the

patient's refusal to submit to it was justified. See Holland, 10

Va. App. at 662, 394 S.E.2d at 868. "The matter of justification

must be considered from the viewpoint of the patient and in the

light of the information which was available to him." Id.

We do not have before us a case where the employee lacked

complete medical consultation and assurance. See, e.g., Holland,

10 Va. App. at 663, 394 S.E.2d at 868. Instead, Michael saw

several doctors, all of whom assured him of the low chance of

complications and the high probability of success. Furthermore,

Michael's reasons for his fear of surgery changed from time to

time without any apparent logic. Indeed, the commission noted

that Michael "testified that he would have accepted the surgery

if it had been prescribed closer in time to the work accident."

Considering this with all the other facts before the commission,

we cannot say that the commission erred in finding that Michael's

claim of fear constituted an unreasonable refusal of medical

treatment. Affirmed.

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