Dan River, Inc. v. Betty L. Owen

• Court: Court of Appeals of Virginia
• Decided: April 24, 2001
• Docket: 2222003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Agee Argued at Salem, Virginia

DAN RIVER, INC. MEMORANDUM OPINION* BY v. Record No. 2222-00-3 JUDGE RUDOLPH BUMGARDNER, III APRIL 24, 2001 BETTY L. OWEN

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

James A. L. Daniel (Martha White Medley; Daniel, Vaughan, Medley & Smitherman, P.C., on brief), for appellant.

J. Gregory Webb (Michie, Hamlett, Lowry, Rasmussen & Tweel, on brief), for appellee.

Dan River, Inc. seeks reversal of the Workers' Compensation

Commission's award of benefits to Betty L. Owen. It contends

the employee failed to establish as a matter of law that she was

entitled to benefits. For the following reasons, we affirm in

part and reverse in part.

"Decisions of the commission as to questions of fact, if

supported by credible evidence, are conclusive and binding on

this Court." Manassas Ice & Fuel Co. v. Farrar, 13 Va. App.

227, 229, 409 S.E.2d 824, 826 (1991). "If there is evidence or

reasonable inference that can be drawn from the evidence to

support the Commission's findings, they will not be disturbed by

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. this Court on appeal, even though there is evidence in the

record to support contrary findings of fact." Caskey v. Dan

River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11

(1983).

The 61-year-old employee injured her back at work on

December 16, 1997, while lifting a king-size comforter set,

"bed-in-a-bag," over her head. When she lifted the bag and

placed it in a cardboard box, she felt a burning pain across the

lower part of her back. She has not worked since December 21,

1997. The employee testified her painful symptoms started after

the work accident.

On December 18, 1997, the employee saw Dr. Thomas M.

Alabanza, a primary care physician. She selected him from a

list of physicians in the employer's health plan. She advised

him that she pulled a muscle in her back while lifting boxes at

work. On December 22, 1997, Dr. Alabanza took her out of work

for ten days and prescribed medications for her pain. She gave

the employer her work release that day and, at its clinic,

selected orthopedic surgeon Dr. Lawrence F. Cohen as her

treating physician.

Dr. Alabanza referred the employee to Dr. J. Stephen

Eggleston for chiropractic care. Between February 2, 1998 and

February 18, 1998 she visited him ten times. The employee, who

denied previously having any lower back problems, told him that

on December 16, 1997 she was lifting a king-size comforter over

- 2 - her head and had immediate unrelenting pain. On February 4,

1998, Dr. Eggleston diagnosed the employee with a compression

fracture. He stated, "it's pretty clear to me that [the cause

of the fracture] is consistent with the work injury described by

the patient." Dr. Eggleston concluded the employee was totally

disabled from December 20, 1997 through February 27, 1998.

On February 16, 1998, Dr. Eggleston called Dr. Alabanza

regarding the employee's insurance coverage. Gateway Southern

Health authorized only ten visits for the year. Dr. Eggleston

indicated the employee had one visit left, but needed ten more

over the next month for acupuncture and physical therapy.

Gateway did not authorize more visits. With "no more than 20%

improvement," and a "guarded" prognosis, Dr. Eggleston returned

the employee to Dr. Alabanza on February 18, 1998.

Dr. Alabanza referred the employee to Dr. Cohen on February

2, 1998. On February 25, Dr. Cohen diagnosed her with a

compression fracture at T12 and kyphosis. He recommended a

chairback brace to alleviate her symptoms, which she wore. On

March 4, 1998, Dr. Cohen recommended a bone density evaluation

and CT scan to determine the degree of the employee's

osteoporosis or osteopenia. The CT scan was completed March 6,

1998. In a letter to counsel dated July 16, 1998, Dr. Cohen

stated that due to the employee's osteoporosis or osteopenia, he

"probably will not [be able] to give any type of opinion as to

whether this was a work related injury or not."

- 3 - The employee sought a second opinion from Dr. Donald P. K.

Chan at the University of Virginia. After evaluating the

employee and reviewing her records, Dr. Chan opined that her

disability is "most likely due to the lifting accident . . . and

pre-existing . . . osteoporosis."

The employee filed a claim with the commission November 12,

1998. The deputy commissioner determined she had "set forth a

particular incident occurring at a reasonable [sic] specific

time." The deputy denied the employee's claim, however, because

she "failed to prove that her disability and medical treatment

are causally related" to the work incident.

The employee appealed. In its December 17, 1999 opinion,

the full commission reversed the deputy's finding of causation

and remanded the case for consideration of the employer's

previously filed defenses. At the second hearing, the deputy

commissioner determined the employee was totally disabled, and

under no obligation to market her residual work capacity, from

December 22, 1997 through April 19, 1998 and from September 21,

1998 forward.

The employer appealed, and the full commission affirmed the

deputy's award of benefits as modified. 1 One commissioner

1 The commission modified the deputy's date at which the employee's second period of disability commenced, from September 21, 1998 to June 29, 1998 and continuing.

- 4 - dissented on the ground that the employee unjustifiably refused

medical treatment.

First we consider whether the commission erred in finding

that the employee established a causal connection between the

work-related injury and her disability. The employer conceded

it did not preserve its objection to the deputy's finding that

she suffered an injury by accident. That issue is uncontested,

and we do not address it.

The commission's determination of causation and its

resolution of conflicting medical opinions are questions of

fact. Corning, Inc. v. Testerman, 25 Va. App. 332, 339, 488

S.E.2d 642, 645 (1997) (causation); Celanese Fibers Co. v.

Johnson, 229 Va. 117, 120-21, 326 S.E.2d 687, 690 (1985)

(conflicting medical opinions). The employee's testimony

regarding causation may be considered, particularly when the

medical testimony is inconclusive. Dollar General Store v.

Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996).

Where an employee's pre-existing condition is aggravated,

accelerated, or exacerbated by a work-related injury, the

resulting disability is covered under the Workers' Compensation

Act. Olsten of Richmond v. Leftwich, 230 Va. 317, 319-20, 336

S.E.2d 893, 895 (1985).

The commission's finding, that the employee established

that it was more probable than not that her disability was

caused, at least in part, by the work-related accident, is

- 5 - supported by credible evidence. The employee suffered from

osteoporosis and osteopenia. After the accident, she was

diagnosed with a T12 compression fracture and for the first time

experienced lower back pain. Dr. Eggleston opined, "As far as

the cause of the fracture, it's pretty clear to me that it is

consistent with the work injury described by the patient."

Dr. Cohen could not state to a reasonable degree of medical

certainty whether the employee's accident caused her disability

because he had an incomplete medical record to rule out other

possible causes. Dr. Cohen was skeptical because a compression

fracture is not likely to result from a lifting incident. He

conceded, however, that due to the employee's osteoporosis, a

lifting incident could have caused her fracture.

The commission relied on the opinions of Drs. Eggleston and

Chan and found the independent records review conducted by

Dr. J. Gordon Burch unpersuasive. The employer attempts to

discredit the opinions of Drs. Alabanza, Eggleston, and Chan

because they provided unauthorized treatment. The fact that

their services were unauthorized does not mean that their

opinions are not credible evidence on causation.

It is the commission's duty to weigh the evidence and

determine the credibility of the witnesses. "We do not retry

the facts" on appeal. Caskey, 225 Va. at 411, 302 S.E.2d at

510. The commission was free to adopt the opinions of Drs.

Eggleston and Chan. Its finding was also supported by the

- 6 - employee's testimony and Dr. Alabanza's notations that relate

her disability to the accident. Finding no error, we affirm the

commission's decision that the employee established a causal

connection between her injury and the work-related accident.

When a physician releases an employee to light duty work,

she has an obligation to market her residual work capacity.

Code § 65.2-510. The commission determined that the employee

was disabled and released from work from December 22, 1997

through April 19, 1998 and June 29, 1998 and continuing. The

issue is whether the employee marketed her residual work

capacity from April 20 through June 28, 1998. She concedes she

has not looked for work after December 22, 1997. Thus, the

record supports the commission's finding that she is not

entitled to an award from April 20, 1998 through June 28, 1998,

the period in which she was released to light duty work.

Next, we consider whether the employee is barred from

receiving compensation for unjustifiably refusing to accept

medical services offered by the employer. Code § 65.2-603;

Shawnee Management Corp. v. Hamilton, 25 Va. App. 672, 678, 492

S.E.2d 456, 459 (1997) (en banc). Whether or not she refused

medical treatment is a question of fact. Id. In determining

whether the employee's refusal of treatment is justified, we

review the evidence from her perspective and "in light of the

information available to [her]" at the time of her decision.

- 7 - Holland v. Virginia Bridge & Structures, Inc., 10 Va. App. 660,

662, 394 S.E.2d 867, 868 (1990) (citation omitted).

On March 4, 1998, Dr. Cohen recommended the employee

undergo a CT scan of the area surrounding the compression

fracture to "see what the anatomy is and see if there is a burst

quality to this." He also wanted to get a bone density

evaluation. The CT scan was done March 6, and Dr. Cohen

reviewed it March 9, 1998. On April 20, 1998, Dr. Cohen

explained to the employee that the bone scan results would rule

out a tumor or infection, enabling him to determine why she was

still in so much pain. The employee, however, "adamantly

refused the bone scan," noting it was too expensive.

On May 18, 1998, Dr. Cohen noted the employee "is still

having severe pain." He recommended she start getting out of

the back brace and asked "if she wanted to see Dr. Fraifeld, a

pain management doctor." She refused this option. Then he

discussed surgical intervention with her, for which she would

need to have an MRI.

The MRI was done July 1, 1998. It revealed "chronic

compression deformity of T12," with no sign of a herniated or

bulging disc. Dr. Cohen's July 27, 1998 office note states that

the MRI revealed a kyphotic deformity. He again discussed

surgery with the employee, which he noted was a major procedure.

He recommended a CT scan of the employee's abdomen to discern

the source of her cramps. She refused this option despite

- 8 - Dr. Cohen's belief that the fracture had healed and that a tumor

could be causing her pain. He also recommended she get a second

opinion.

The employee visited with Dr. Chan at UVA for a second

opinion regarding causation. Dr. Chan's impression, documented

in his September 4, 1998 letter, indicates the employee "has a

compression fracture at T12, most likely due to the lifting

accident and also most likely because of pre-existing osteopenia

from post menopausal osteoporosis." He concluded, "I think her

continued pain is the result of this fracture."

The commission affirmed the deputy's finding that the

employee "did not unjustifiably refuse to undergo the

recommended surgical procedure." On appeal, the employer does

not maintain that she needed to undergo the surgery. It was a

complicated procedure, and Dr. Cohen offered only a 60% rate of

success. The employer maintains that the employee's refusal to

undergo any of the three courses of treatment recommended by her

treating physician was not justified.

Workers' compensation benefits are conditioned upon the

employee's undergoing necessary medical treatment to place the

cost of treatment on the employer and restore the employee's

health enabling her to return to work. Davis v. Brown &

Williamson Tobacco Co., 3 Va. App. 123, 128, 348 S.E.2d 420, 422

(1986) ("the Commission . . . [must] focus upon the purpose of

the legislature in requiring the employer to furnish and

- 9 - obligating the employee to receive medical attention" (emphasis

added)). Where the employee refuses prescribed treatment and

such refusal results in an aggravation of, or impediment to the

cure of, the disability, the employee has not taken reasonable

steps to limit the employer's liability. Id. at 128-29, 348

S.E.2d at 423.

The employee refused to undergo any of the recommended

treatments: surgery, bone scan, or pain management. It does

not serve the purposes of the Act for the employee to collect

benefits but sit idle and refuse every course of recommended

medical treatment that could improve her condition. The

employee's refusal to have the surgery was justified considering

her age, the seriousness of the procedure, and the poor odds of

its success. But she also refused the bone scan, which would

have permitted the doctor to diagnose the cause of her

continuing pain. Finally, she refused to get pain management

treatment to reduce or minimize her pain. The employee cannot

say no to every avenue of treatment.

We affirm the commission's award of benefits to the

employee during her periods of disability, December 22, 1997

through April 19, 1998 and June 29, 1998 and continuing, and its

decision that she is not entitled to benefits from April 20,

1998 through June 28, 1998, because she was released to light

duty and did not market her residual capacity. However, we

reverse the decision that the employee was justified in refusing

- 10 - medical treatment because the commission did not determine

whether her refusal to undergo the bone scan or pursue pain

management was justified. 2 Accordingly, we affirm in part, and

reverse and remand in part for further proceedings consistent

with this opinion.

Affirmed in part, and reversed and remanded, in part.

2 The employee denied she refused to undergo the bone scan. She claimed Dr. Cohen told her the procedure was not necessary and recommended she have it later. The commission did not indicate if their decision was based on believing the employee's version and discrediting the doctor's version.

- 11 -