Dominion Coal Corp v. Clyde Lyndell Horne

• Court: Court of Appeals of Virginia
• Decided: April 22, 1997
• Docket: 2195963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Fitzpatrick Argued at Salem, Virginia

DOMINION COAL CORPORATION AND JEWELL RESOURCES CORPORATION MEMORANDUM OPINION * BY JUDGE LARRY G. ELDER v. Record No. 2195-96-3 APRIL 22, 1997

CLYDE LYNDELL HORNE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION S. T. Mullins (Street, Street, Street, Scott & Bowman, on briefs), for appellants.

Carr L. Kinder, Jr. (John A. Martin; Browning, Lamie & Sharp, on brief), for appellee.

Dominion Coal Corporation (employer) and Jewell Resources

Corporation (carrier) appeal a decision of the Workers'

Compensation Commission (commission) awarding medical benefits to

Clyde Lyndell Horne (claimant). For the reasons that follow, we

affirm.

Claimant suffered a compensable injury to his back on

January 9, 1985. Until 1995, claimant had been treated

contemporaneously for many years by two treating physicians: Dr.

Hulvey, an orthopedic surgeon whose office is in Abingdon, and

Dr. Baxter, a general practitioner whose office is in Grundy. In

early 1995, Dr. Baxter announced that he was retiring from the

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. practice of medicine. On May 4, 1995, Dr. Hulvey referred

claimant to Dr. Sutherland, a general practitioner whose office

is near claimant's home. On May 8, carrier informed claimant

that it "cannot accept" the referral of Dr. Sutherland because he

"is not an approved panel physician." Carrier offered claimant a

panel of three physicians from which claimant could choose Dr.

Baxter's replacement.

Claimant declined to choose a physician from carrier's panel

and filed a claim with the commission seeking the payment of Dr.

Sutherland's outstanding medical bills. His claim was denied by

a deputy commissioner. Claimant appealed, and the commission

reversed, concluding that employer should pay for Dr.

Sutherland's treatment. Appellants contend that the commission erred when it

concluded that claimant was validly referred by Dr. Hulvey to Dr.

Sutherland following the retirement of Dr. Baxter. We disagree.

"Code § 65.2-603 allows an employee to select from a panel

of physicians offered by the employer, or in the absence of a

forthcoming offer, to select a physician of the employee's

choice." Biafore v. Kitchin Equip. Co. of Virginia, 18 Va. App.

474, 478-79, 445 S.E.2d 496, 498 (1994) (citing Breckenridge v.

Marval Poultry Co., Inc., 228 Va. 191, 194, 319 S.E.2d 769,

770-71 (1984)). "[O]nce [the selection of a treating physician]

is made, the employee is not at liberty to change therefrom

unless referred by said physician, confronted with an emergency,

-2- or given permission by the employer and or its insurer or [the]

Commission." Breckenridge, 228 Va. at 194, 319 S.E.2d at 770-71.

However, once a treating physician is in place, the Act

protects the power of the treating physician to direct the

claimant's treatment. In Jensen Press v. Ale, we said: [M]edical management of the claimant is to be directed by the treating physician, not by an employer's representative. "[N]either the employer nor its insurance carrier may limit the treating physician in the medical specialist, or treating facilities to which the claimant may be referred for treatment."

1 Va. App. 153, 158, 336 S.E.2d 522, 525 (1985) (citation

omitted).

We hold that the commission did not err when it concluded

that claimant's treatment by Dr. Sutherland resulted from a valid

referral by his treating physician, Dr. Hulvey. The record

established that Dr. Hulvey had been one of claimant's treating

physicians since 1986. In May, 1995, after Dr. Baxter announced

his retirement, Dr. Hulvey wrote a letter referring claimant to

another general practitioner, Dr. Sutherland. Because claimant

was referred to a new general practitioner by Dr. Hulvey, an

authorized treating physician, employer was precluded from

interfering in the selection of the general practitioner.

We disagree with appellants' contention that employer has a

right to participate in the selection of Dr. Baxter's replacement

because Dr. Baxter was a treating physician who released claimant

from his care. Appellants rely on the rule established by

-3- previous decisions of the commission that: [w]here treatment by the authorized physician is denied or is otherwise no longer available, the claimant is obligated to provide notice to the employer or carrier that he needs medical care, so that the employer has an opportunity to provide the care pursuant to the Act. If such care is not provided within a reasonable period, the claimant may seek care from a physician of his choice.

Perrin v. Econo Clean Janitorial Service, VWC File No. 175-98-30,

slip. op. at 3 (June 18, 1996) (emphasis added). We hold that the commission's rule mandating employer

participation in the replacement of a claimant's treating

physician does not apply to this case. On its face, the rule

applies to situations in which the treating physician is no

longer available and the claimant is left without any authorized

medical care. In such instances, the rule requires an employer

and claimant to "start from scratch" and to select a replacement

treating physician in the same manner that a treating physician

is initially selected under Code § 65.2-603. This rule does not

apply to this case because Dr. Baxter's retirement did not leave

claimant without an authorized treating physician to manage his

care. The record indicates that claimant had two authorized

treating physicians: Dr. Hulvey and Dr. Baxter. Upon Dr.

Baxter's retirement, Dr. Hulvey was still available to direct

claimant's medical treatment.

Finally, we disagree with appellants' argument that Dr.

Hulvey's referral of claimant to Dr. Sutherland was not based on

-4- medical necessity. An employer is required to pay for medical

expenses arising from a referral by a claimant's treating

physician that is causally related to the compensable injury and

deemed necessary by the treating physician. See Volvo White

Truck Corp. v. Hedge, 1 Va. App. 195, 200, 336 S.E.2d 903, 906

(1985). Whether a referral is deemed medically necessary by a

treating physician is a question of fact.

On appellate review, we must construe the evidence in the

light most favorable to the prevailing party below, claimant in

this instance. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1

Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). "[T]he

commission's findings of fact are conclusive and binding on us

when there is credible evidence in support of such findings."

Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d

782, 788 (1988).

The commission found that Dr. Hulvey's referral of claimant

to Dr. Sutherland was based on medical necessity, and this

finding is supported by credible evidence in the record. The

circumstances of Dr. Hulvey's referral are detailed in his

letters of May 4, 1995 and November 20, 1995. In his letter of

May 4, Dr. Hulvey stated that claimant "need[ed] to find another

general physician" because Dr. Hulvey was treating claimant's

back problem "conservatively" and claimant would benefit from

having a general practitioner "follow him up over the long haul

for his low back problem." In addition, in his letter of

-5- November 20, Dr. Hulvey stated that he made the decision to refer

claimant to Dr. Sutherland and that "[claimant] did not encourage

or urge me to select any particular physician as I recall."

Thus, we cannot say that the commission's finding that claimant's

referral to Dr. Sutherland was "deemed reasonable and necessary

by Dr. Hulvey" is not supported by credible evidence.

For the foregoing reasons, we affirm the decision of the

commission. Affirmed.

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