COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges Argued at Chesapeake, Virginia
DUMP FURNITURE STORE/HAYNES FURNITURE CO. INC. AND ROYAL AND SUNALLIANCE INSURANCE COMPANY MEMORANDUM OPINION* BY v. Record No. 3400-01-1 JUDGE LARRY G. ELDER OCTOBER 1, 2002 RITA L. HOLLOWAY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William C. Walker (Amanda R. Castel; Taylor & Walker, P.C., on brief), for appellants.
Robert E. Walsh (Rutter, Walsh, Mills & Rutter, L.L.P., on brief), for appellee.
The Dump Furniture Store/Haynes Furniture Co. Inc. and
Royal and Sunalliance Insurance Company (employer) appeal from a
decision of the Workers' Compensation Commission (the
commission) awarding disability benefits to Rita L. Holloway
(claimant). On appeal, employer contends the commission
erroneously determined who claimant's treating physician was and
erroneously relied on the opinions of unauthorized physicians to
support an award of temporary total disability benefits. We
hold credible evidence supports the commission's decision, and
we affirm the award.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On appeal of a decision of the commission, we construe the
evidence in the light most favorable to the party prevailing
below, and we must uphold the commission's findings of fact if
the record contains credible evidence to support them. See,
e.g., Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 712, 427
S.E.2d 215, 217 (1993).
I.
CHOICE OF TREATING PHYSICIANS
Code § 65.2-603(A)(1) provides that for "[a]s long as
necessary after a [compensable industrial] accident, the
employer shall furnish or cause to be furnished, free of charge
to the injured employee, a physician chosen from a panel of at
least three physicians selected by the employer and such other
necessary medical attention."
[I]f the employer fails to offer the injured employee a panel of physicians, the employee is at liberty to select a physician of his own[;] however, once said selection is made the employee is not at liberty to change therefrom unless referred by said physician, confronted with an emergency, or given permission by the employer and/or its insurer or [the] [c]ommission.
Breckenridge v. Marvel Poultry Co., 228 Va. 191, 194, 319 S.E.2d
769, 770-71 (1984).
Here, uncontradicted evidence establishes that employer
never provided claimant with a panel from which to choose a
treating physician. Instead, employer named a particular
medical facility, Riverside Mercury West, as the only facility - 2 - from which claimant could obtain treatment at employer's
expense. As we held in Goodyear Tire & Rubber Co. v. Pierce, 9
Va. App. 120, 130, 384 S.E.2d 333, 339 (1989) (decided under
predecessor statute Code § 65.1-88), "this procedure does not
comply with the provisions of Code § [65.2-603]."
Further, credible evidence supports the commission's
finding that Dr. O.T. Adcock, the physician at Riverside Mercury
West who treated claimant, did not become her treating
physician. Although "[a]n attending physician selected by an
employee becomes the treating physician if the employer fails or
refuses to provide a panel of physicians," Pierce, 9 Va. App. at
130, 384 S.E.2d at 339, credible evidence supports the finding
that claimant did not choose Dr. Adcock. Rather, claimant
testified that she went to Riverside Mercury West, where she saw
Dr. Adcock, because employer told her this was the only facility
at which she was authorized to obtain treatment at employer's
expense. Further, as the commission noted, claimant saw
Dr. Adcock only two or three times during a one-week period and
did not establish a course of treatment with him. Thus,
claimant selected a treating physician, within the meaning of
Code § 65.2-603, when she chose to see Dr. Thomas Stiles, an
orthopedic physician.
Because credible evidence supports the commission's
determination that Dr. Stiles rather than Dr. Adcock was
claimant's treating physician, we need not address employer's - 3 - contention that claimant failed to establish justification for a
change in treating physicians.
II.
CAUSATION AND EXTENT OF DISABILITY
"Causation is an essential element which must be proven by
a claimant in order to receive an award for an injury by
accident." AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391
S.E.2d 879, 881 (1990). The commission's determination
regarding causation is a finding of fact. Marcus v. Arlington
County Bd. of Supervisors, 15 Va. App. 544, 551, 425 S.E.2d 525,
530 (1993). "'Medical evidence is not necessarily conclusive,
but is subject to the commission's consideration and weighing.'
The testimony of a claimant may also be considered in
determining causation, especially where the medical testimony is
inconclusive." Dollar Gen'l Store v. Cridlin, 22 Va. App. 171,
176, 468 S.E.2d 152, 154 (1996) (quoting Hungerford Mech. Corp.
v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991)).
A claimant alleging disability as a result of an injury by
accident also bears the burden of proving both the disability
and the periods of that disability. Marshall Erdman & Assocs.,
Inc. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149 (1997).
Like a finding of causation, the commission's determinations
regarding the nature and duration of a claimant's disability
also are findings of fact. Thus, unless we can say as a matter
of law that claimant's evidence failed to sustain her burden of - 4 - proving causation or the duration of her disability, the
commission's findings are binding and conclusive upon us. Tomko
v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,
835 (1970).
Here, credible evidence supported the commission's finding
that claimant was totally disabled from March 29 through
September 6, 2000, and again from November 28, 2000, and
continuing and that claimant's compensable industrial injury of
February 18, 2000, was the cause of this ongoing total
disability.
Immediately after a set of bed rails fell on claimant on
February 18, 2000, she began to experience pain in her head, jaw
including her right temporomandibular joint (TMJ), right
shoulder, right arm and the right side of her neck, and she had
difficulty opening her mouth. When she saw Dr. Adcock on
February 21, 2000, she complained of ongoing headache as well as
pain and stiffness on the entire right side of her body. On
February 27, 2000, she reported that her headache and muscle
stiffness continued, that she had pain in her right jaw and
cheek, and that her pain was "just getting worse and worse."
When claimant saw Dr.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges Argued at Chesapeake, Virginia
DUMP FURNITURE STORE/HAYNES FURNITURE CO. INC. AND ROYAL AND SUNALLIANCE INSURANCE COMPANY MEMORANDUM OPINION* BY v. Record No. 3400-01-1 JUDGE LARRY G. ELDER OCTOBER 1, 2002 RITA L. HOLLOWAY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William C. Walker (Amanda R. Castel; Taylor & Walker, P.C., on brief), for appellants.
Robert E. Walsh (Rutter, Walsh, Mills & Rutter, L.L.P., on brief), for appellee.
The Dump Furniture Store/Haynes Furniture Co. Inc. and
Royal and Sunalliance Insurance Company (employer) appeal from a
decision of the Workers' Compensation Commission (the
commission) awarding disability benefits to Rita L. Holloway
(claimant). On appeal, employer contends the commission
erroneously determined who claimant's treating physician was and
erroneously relied on the opinions of unauthorized physicians to
support an award of temporary total disability benefits. We
hold credible evidence supports the commission's decision, and
we affirm the award.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On appeal of a decision of the commission, we construe the
evidence in the light most favorable to the party prevailing
below, and we must uphold the commission's findings of fact if
the record contains credible evidence to support them. See,
e.g., Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 712, 427
S.E.2d 215, 217 (1993).
I.
CHOICE OF TREATING PHYSICIANS
Code § 65.2-603(A)(1) provides that for "[a]s long as
necessary after a [compensable industrial] accident, the
employer shall furnish or cause to be furnished, free of charge
to the injured employee, a physician chosen from a panel of at
least three physicians selected by the employer and such other
necessary medical attention."
[I]f the employer fails to offer the injured employee a panel of physicians, the employee is at liberty to select a physician of his own[;] however, once said selection is made the employee is not at liberty to change therefrom unless referred by said physician, confronted with an emergency, or given permission by the employer and/or its insurer or [the] [c]ommission.
Breckenridge v. Marvel Poultry Co., 228 Va. 191, 194, 319 S.E.2d
769, 770-71 (1984).
Here, uncontradicted evidence establishes that employer
never provided claimant with a panel from which to choose a
treating physician. Instead, employer named a particular
medical facility, Riverside Mercury West, as the only facility - 2 - from which claimant could obtain treatment at employer's
expense. As we held in Goodyear Tire & Rubber Co. v. Pierce, 9
Va. App. 120, 130, 384 S.E.2d 333, 339 (1989) (decided under
predecessor statute Code § 65.1-88), "this procedure does not
comply with the provisions of Code § [65.2-603]."
Further, credible evidence supports the commission's
finding that Dr. O.T. Adcock, the physician at Riverside Mercury
West who treated claimant, did not become her treating
physician. Although "[a]n attending physician selected by an
employee becomes the treating physician if the employer fails or
refuses to provide a panel of physicians," Pierce, 9 Va. App. at
130, 384 S.E.2d at 339, credible evidence supports the finding
that claimant did not choose Dr. Adcock. Rather, claimant
testified that she went to Riverside Mercury West, where she saw
Dr. Adcock, because employer told her this was the only facility
at which she was authorized to obtain treatment at employer's
expense. Further, as the commission noted, claimant saw
Dr. Adcock only two or three times during a one-week period and
did not establish a course of treatment with him. Thus,
claimant selected a treating physician, within the meaning of
Code § 65.2-603, when she chose to see Dr. Thomas Stiles, an
orthopedic physician.
Because credible evidence supports the commission's
determination that Dr. Stiles rather than Dr. Adcock was
claimant's treating physician, we need not address employer's - 3 - contention that claimant failed to establish justification for a
change in treating physicians.
II.
CAUSATION AND EXTENT OF DISABILITY
"Causation is an essential element which must be proven by
a claimant in order to receive an award for an injury by
accident." AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391
S.E.2d 879, 881 (1990). The commission's determination
regarding causation is a finding of fact. Marcus v. Arlington
County Bd. of Supervisors, 15 Va. App. 544, 551, 425 S.E.2d 525,
530 (1993). "'Medical evidence is not necessarily conclusive,
but is subject to the commission's consideration and weighing.'
The testimony of a claimant may also be considered in
determining causation, especially where the medical testimony is
inconclusive." Dollar Gen'l Store v. Cridlin, 22 Va. App. 171,
176, 468 S.E.2d 152, 154 (1996) (quoting Hungerford Mech. Corp.
v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991)).
A claimant alleging disability as a result of an injury by
accident also bears the burden of proving both the disability
and the periods of that disability. Marshall Erdman & Assocs.,
Inc. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149 (1997).
Like a finding of causation, the commission's determinations
regarding the nature and duration of a claimant's disability
also are findings of fact. Thus, unless we can say as a matter
of law that claimant's evidence failed to sustain her burden of - 4 - proving causation or the duration of her disability, the
commission's findings are binding and conclusive upon us. Tomko
v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,
835 (1970).
Here, credible evidence supported the commission's finding
that claimant was totally disabled from March 29 through
September 6, 2000, and again from November 28, 2000, and
continuing and that claimant's compensable industrial injury of
February 18, 2000, was the cause of this ongoing total
disability.
Immediately after a set of bed rails fell on claimant on
February 18, 2000, she began to experience pain in her head, jaw
including her right temporomandibular joint (TMJ), right
shoulder, right arm and the right side of her neck, and she had
difficulty opening her mouth. When she saw Dr. Adcock on
February 21, 2000, she complained of ongoing headache as well as
pain and stiffness on the entire right side of her body. On
February 27, 2000, she reported that her headache and muscle
stiffness continued, that she had pain in her right jaw and
cheek, and that her pain was "just getting worse and worse."
When claimant saw Dr. Stiles on March 29, 2000, her
symptoms continued, and an MRI revealed bulging discs at C5-6
and C6-7 and mild spinal cord compression. By letter of July
21, 2000, Dr. Stiles opined that claimant had been totally
disabled from work due to pain and spasm from March 29, 2000, - 5 - the date on which he first saw her, through June 8, 2000, the
date he last examined her prior to writing the letter. He noted
claimant's ongoing severe neck pain and numbness of the arm,
face, head and upper extremity. He diagnosed claimant as having
bulging discs as C5-6 and C6-7 and upper extremity weakness, and
he opined that these conditions were due to her industrial
accident. Dr. Stiles subsequently opined that claimant was
disabled continuously from March 29, 2000, through early 2001.
On referral from Dr. Stiles, Dr. J. Abbott Byrd, III, also
treated claimant during this period of time. When Dr. Byrd
first saw claimant on May 17, 2000, he diagnosed her as having a
facial contusion, cervical strain with radiculopathy, and a
possible TMJ problem. Although Dr. Byrd did not specifically
link claimant's problems to her employment, he agreed with
Dr. Stiles that claimant was totally disabled at that time.
Dr. Byrd saw claimant on at least three additional occasions
through September 6, 2000. Although Dr. Byrd said he had
nothing further to offer claimant in regard to her spine
condition, he refilled her prescriptions and told her she could
return to see him as necessary. He subsequently opined that
claimant was totally disabled as of September 6, 2000, the date
he last saw her, "because of her continued symptoms."
Dr. Mrazik, an oral surgeon who saw claimant on July 21 and
August 4, 2000, ordered an MRI of her TMJ and diagnosed
"[m]yalgia associated with the muscles of mastication." - 6 - Dr. Mrazik gave no opinion regarding whether claimant was
disabled during this period of time, but he noted his treatment
of claimant was due to her "[w]ork related injury."
Claimant returned to Dr. Stiles on November 28, 2000. He
opined at that time that claimant continued to suffer severe
neck and arm problems and a "causalgic-type symptomatology"
because of her industrial injury, and claimant remained under
Dr. Stiles' care for those conditions. Dr. Stiles referred
claimant to a neurologist who noted that claimant had signs of
denervation in the deltoid muscle which suggested C5-6
radiculopathy.
In early 2001, Dr. Stiles issued a disability slip excusing
claimant from work from March 29, 2000, through January 10,
2001, and he referred claimant back to Dr. Byrd "regarding
surgery." On January 31, 2001, Dr. Byrd, who treated claimant
for the cervical spine problem Dr. Stiles linked to claimant's
industrial injury, opined that claimant remained unable to work.
Finally, claimant testified that she was scheduled to undergo
disc surgery on her neck on March 23, 2001, and she denied
suffering any other injuries to her head, neck or shoulder since
her compensable injury of February 18, 2000.
This evidence, found credible by the commission,
established that claimant's February 18, 2000 accident caused
her severe, ongoing neck, arm and jaw problems and a related
"causalgic-type symptomatology . . . with sympathetic - 7 - involvement." The evidence also established that these ailments
rendered her totally disabled from March 29 through September 6,
2000, and again from November 28, 2000, and continuing.
For these reasons, we affirm the commission's award of
medical and disability benefits.
Affirmed.
- 8 -