Howard Wells v. Automotive Service Garage and Graphic Arts Mutual Insurance Co.

• Court: Court of Appeals of Virginia
• Decided: February 20, 2018
• Docket: 1369174
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Alston and Russell Argued at Richmond, Virginia UNPUBLISHED

HOWARD WELLS MEMORANDUM OPINION* BY v. Record No. 1369-17-4 CHIEF JUDGE GLEN A. HUFF FEBRUARY 20, 2018 AUTOMOTIVE SERVICE GARAGE AND GRAPHIC ARTS MUTUAL INSURANCE CO.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

David Rosenblum (Rosenblum & Rosenblum, LLC, on brief), for appellant.

Amanda Tapscott Belliveau (Andrew Elliot Sassoon; McCandlish Holton Morris, P.C., on brief), for appellees.

Howard Wells (“claimant”) appeals the decision of the Virginia Workers’ Compensation

Commission which upheld the deputy commissioner’s denial of claimant’s request for

authorization of further medical treatment and a change in treating physician. On appeal,

claimant argues that the Commission erred by finding that the additional treatment sought was

not causally related to his original compensable injury, and by refusing his request for a change

of treating physician. He also claims that the Commission erred by failing to award him

attorney’s fees and deposition costs. For the following reasons, this Court affirms the

Commission’s rulings.

I. BACKGROUND

“On appeal, we view the evidence in the light most favorable to the prevailing party

before the [C]ommission.” Portsmouth Sch. Bd. v. Harris, 58 Va. App. 556, 559, 712 S.E.2d 23,

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 24 (2011) (quoting Central Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va. App.

264, 269, 590 S.E.2d 631, 634 (2004)). So viewed, the evidence is as follows.

Claimant suffered an accident at work on April 20, 2012, sustaining injuries to his spine,

wrist, and left foot. His employer, Automotive Services Garage, and its insurance carrier

(collectively “employer”) accepted the injuries as compensable and the Commission entered an

award order on May 25, 2012. Claimant began seeing Dr. Ramesh G. Chandra (“Chandra”) soon

after the accident, and after a period of conservative treatment, Chandra recommended surgery to

repair a fracture of the fifth metatarsal on his left foot. He performed the surgery on November

27, 2012, after which claimant underwent a course of physical therapy. On February 4, 2013,

claimant reported to Chandra that he was experiencing increased pain in his foot, and after

reviewing new x-rays, Chandra determined that a screw placed during the first surgery was

backing out. He recommended an additional surgery to remove the hardware, which he

performed on March 21, 2013. Following this second surgery, claimant completed additional

physical therapy and eventually progressed to the point of wearing normal footwear and

ambulating with minimal pain.

At an examination on April 15, 2013, Chandra noted that claimant was walking normally,

had full range of motion and strength in all ankle muscle groups, and had minimal pain and no

swelling in his foot. He released claimant to full duty at work. Following a final follow-up

exam on May 13, 2013, Chandra confirmed that the fracture had healed with good alignment,

notified claimant that he had met all treatment targets and goals, and advised claimant to

continue his home exercise program with follow-ups only as needed.

According to later testimony from his supervisor, claimant performed his normal duties at

work from the time of his return in April of 2013 until June of 2014. During that time, he wore

normal shoes and moved around without assistive devices. The supervisor testified that claimant

-2- did not limp or move about abnormally and that he did not complain of any pain that interfered

with his ability to perform his work duties.

On June 8, 2014, claimant was involved in a car accident in his personal vehicle and

received hospital treatment for injuries to his head, neck, shoulder, elbow, and hip. Numerous

doctors and a chiropractor treated claimant’s injuries in the accident’s aftermath. On July 15,

2014, claimant underwent an independent medical evaluation with orthopedist Dr. Louis Levitt

(“Levitt”), who evaluated a number of complaints related to his back and knees and took x-rays

of his left foot. Levitt’s report noted that claimant’s left foot had healed normally, that he had

reached maximum medical improvement for the left foot fracture in 2013, and that he needed no

further treatment for his left foot beyond that time. Levitt also noted that claimant did not

disclose his June 8, 2014 car accident in the course of the examination.

In 2015 and 2016, claimant sought a series of independent medical examinations

pursuant to a pending personal injury claim. Dr. Matthew Ammerman (“Ammerman”), a

neurologist, examined claimant on May 26, 2015, and appellant reported foot pain, back pain,

and knee pain which he attributed to his accident from 2012. Ammerman addressed his back

pain and recommended pain management treatments to deal with it. Ammerman noted that

claimant’s back pain was likely aggravated by gait problems arising from foot pain and knee

pain. Claimant also did not inform Ammerman of his 2014 accident. Dr. Kenneth Ward

(“Ward”) examined claimant on November 2, 2015 and conducted an extensive records review.

He noted that claimant was using a cane at that time and reported tenderness and pain in his left

foot. Ward’s final report took note of Chandra’s indication that the fracture in claimant’s foot

was healed in 2013 and opined that “continued dysfunction after a healed fifth metatarsal

fracture is an unlikely scenario.”

-3- Claimant underwent additional independent medical examinations on March 9 and 10,

2016. At his March 9, 2016 examination with podiatrist Dr. Gary Feldman (“Feldman”),

claimant alleged that he had been suffering pain in his left foot for almost four years, dating back

to the 2012 work accident, and presented MRI studies for Feldman to review. At his March 10,

2016 exam with orthopedist Dr. Barry Boden (“Boden”), claimant reported back, hip, and knee

pain ongoing since the 2012 accident. Boden administered a cortisone injection in claimant’s

left knee and opined that claimant might need a knee replacement at some point. Once again,

claimant informed neither Feldman nor Boden about his 2014 accident so neither of their reports

mentions it.

The claims at issue in this appeal were filed in March and November of 2016, and an

evidentiary hearing took place before a deputy commissioner on February 15, 2017. Claimant

testified on his own behalf and offered into evidence the reports from Ammerman, Boden, and

Feldman. Claimant also submitted a deposition taken of Chandra. Claimant testified that he

sought treatment from Chandra in late 2013 for continuing pain in his foot, but that the “front

office staff” in Chandra’s office informed him that the insurance carrier had refused treatment.

Claimant was unable to provide details of his contact with Chandra’s office, and Chandra

provided conflicting testimony in his deposition on the issue of whether claimant had ever

contacted his office. Claimant testified that this refusal of service forced him to seek treatment

from Boden and Feldman and formed the basis of his request for a change in treating physician.

Claimant acknowledged upon cross-examination that he did not inform Doctors Boden or

Feldman of his 2014 accident.

Employer submitted questionnaires completed by Chandra indicating that claimant’s left

foot fracture had completely healed by the time he was returned to work in April of 2013.

-4- Employer also relied upon testimony from claimant’s work supervisor, Chandra’s records, and

Levitt’s opinion that claimant’s fracture was healed and asymptomatic as late as July 15, 2014.

After weighing the conflicting medical evidence and testimony, the deputy commissioner

ruled that claimant’s requested treatment was not causally related to his compensable accident

from 2012. As such, a change of physician was not warranted. The deputy commissioner also

ruled that claimant was not entitled to attorney’s fees or reimbursement for Chandra’s deposition

because Rule 1.8(G) did not apply. Claimant requested review by the full Commission, which

affirmed the deputy commissioner’s rulings on August 4, 2017. This appeal followed.

II. STANDARD OF REVIEW

On appeal, the factual findings of the Commission are binding on this Court “if those

findings are supported by credible evidence in the record.” Rusty’s Welding Serv., Inc. v.

Gibson, 29 Va. App. 119, 131, 510 S.E.2d 255, 261 (1999) (en banc). “In determining whether

credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance

of the evidence, or make its own determination of the credibility of the witnesses.” Id.

Although this Court defers to the Commission’s factual findings, its “legal determinations

are not binding on appeal, and will be reviewed de novo.” Starbucks Coffee Co. v. Shy, 61

Va. App. 229, 238, 734 S.E.2d 683, 688 (2012) (quoting Wainwright v. Newport News

Shipbuilding & Dry Dock Co., 50 Va. App. 421, 430, 650 S.E.2d 566, 571 (2007)). When those

conclusions arise from construction of the Workers Compensation Act (“the Act”) or its own

rules, “[t]he Commission’s construction . . . is entitled to great weight on appeal.” Allen &

Rocks, Inc. v. Briggs, 28 Va. App. 662, 675, 508 S.E.2d 335, 341 (1998).

III. ANALYSIS

Claimant asks this Court to resolve three issues: the causal relationship between his

requested treatment and the original compensable injury, his request for a new physician, and his

-5- request for deposition costs and attorney’s fees. This opinion discusses each in turn, starting

with causation.

A. Causation

Code § 65.2-603 requires that employers furnish for “as long as necessary after an

accident” a physician and “such other necessary medical attention . . . as the nature of the injury

may require.” Although any injured worker is entitled to treatment under an award of the

Commission, the burden always falls to the claimant to prove that “the medical attention, for

which payment is claimed under [Code § 65.2-603], was causally related to the industrial

accident.” Watkins v. Halco Engineering, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).

When confronted with such a claim, “[t]he 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).

In this case, claimant’s evidence that his recurring foot pain was causally connected to his

original injury was insufficient to convince the Commission. Claimant’s original treating

physician, Chandra, reported that his fracture was completely healed and returned claimant to

full duty on April 15, 2013. Although claimant alleged that he sought treatment for continuing

foot pain from Chandra “about four months” after that, the contact is disputed. Levitt stated in

his report from July 2014 that claimant’s foot appeared completely healed and he had no

symptoms of foot pain or dysfunction. Ammerman’s report from claimant’s visit in 2015

contains the first documentation of renewed foot pain after Chandra released claimant to full

duty. Feldman and Boden describe ongoing foot pain in their reports, but their examinations

were based on incomplete and inaccurate medical histories. Medical evidence was in conflict.

When the Commission hears conflicting medical evidence, “[q]uestions raised by

conflicting medical opinions must be decided by the [C]ommission.” Penley v. Island Creek

-6- Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). The Commission evaluated all the

medical evidence regarding the condition of claimant’s foot, giving particular weight to the

opinion of Chandra—claimant’s primary treating physician—because “the opinion of the

claimant’s treating physician is ordinarily given great weight.” Pilot Freight Carriers v. Reeves,

1 Va. App. 435, 439, 399 S.E.2d 570, 572 (1986). The Commission determined that the opinions

of Feldman and Boden were insufficient to overcome the opinions of Levitt, Ward, and Chandra,

and concluded that the treatment claimant requested was not causally related to the compensable

injury.

Claimant alleges that the Commission did not give sufficient weight to particular pieces

of evidence, but on review this Court does not “retry the facts, reweigh the preponderance of the

evidence, or make its own determination of the credibility of the witnesses.” Wagner

Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). Such

determinations are best made by the Commission, which, like a trial court, is in the best position

to do so. “The fact that there is contrary evidence in the record is of no consequence [to this

Court’s review] if there is credible evidence to support the [C]ommission’s finding.” Id. There

is credible evidence in the record to support the Commission’s conclusion. Accordingly, this

Court will not disturb it.

B. Change in Treating Physician

Appellant’s claim for a change in treating physician is inseparably linked to the question

of causation regarding his current symptoms. Code § 65.2-603(A)(1) states that once an

employee has chosen a physician from the panel of three provided by the employer, any change

must be approved by the employer or the Commission. The party seeking the change bears the

burden of proving that specific circumstances warrant it. Apple Constr. Corp. v. Sexton, 44

Va. App. 458, 461, 605 S.E.2d 351, 352 (2004). The Commission and this Court have found a

-7- variety of circumstances that might justify a change in physician, including inadequate treatment,

the need for treatment by a specialist that is not being provided, or lack of improvement in the

underlying condition. Id. (quoting Allen & Rocks, 28 Va. App. at 676, 508 S.E.2d at 341).

In Apple Construction, the employer sought a change in treating physician in order to

avoid paying travel expenses for the claimant to continue treatment with his original doctor after

he moved. The Commission found, and this Court affirmed, that the employer’s claims that a

closer doctor would be better for the claimant fell “far short of qualifying as an axiom of law”

and that the employer—in that case the party requesting the change—failed to provide sufficient

factual support that any of the conditions described in Allen & Rocks had been met. Id.

In this case, claimant could not prove that any of the conditions justifying a change in

physician had been met because he did not prove the causal connection between his compensable

injury and any required further treatment. The Commission rightly determined that claimant

could not prove that he was receiving inadequate treatment, or needed a different specialist, or

that his treatment was not progressing, because the available evidence showed that his

compensable foot injury had resolved completely through Chandra’s care in 2013. Accordingly,

the Commission found that claimant had failed to carry his burden of proof that a change in

physician was necessary. This conclusion was also supported by credible evidence, and will not

be disturbed by this Court.

C. Award of Attorney’s Fees and Costs

Claimant sought an award of attorney’s fees or, at minimum, reimbursement for the cost

of deposing Chandra. The Commission, or any court before whom proceedings under the Act

are brought, may award attorney’s fees and costs to the claimant if the employer or insurer

defends a claim without reasonable grounds. Code § 65.2-713. Costs of depositions may be

included in such an award, according to Code § 65.2-703. Furthermore the Commission’s

-8- Rule 1.8(G) allows for depositions of an attending physician to be taken, at employer’s expense,

if the physician “has not prepared written reports which are sufficient to answer questions

concerning . . . causation,” among other things. Rule 1.8(G) was designed to “give claimants an

ability to obtain at the employers’ expense complete information and opinions from . . .

physicians who fail to provide” this information. Nichols v. General Parts, Inc., VWC No.

229-57-35, 2007 VA Wrk. Comp. LEXIS 1811, at *4 (VA Wrk. Comp. Apr. 17, 2007)

(emphasis added).

Any award of attorney’s fees and costs under the Act is “left to the sound discretion of

the Commission. [This Court] will not disturb the administrative assessment of costs or

attorney’s fees unless there is an abuse of discretion.” Lynchburg Foundry Co. v. Goad, 15

Va. App. 710, 715, 427 S.E.2d 215, 218-19 (1993) (quoting Jensen Press v. Ale, 1 Va. App. 153,

159, 336 S.E.2d 522, 525-26 (1985)). On review, this Court gives “great deference to the

interpretation given by the [C]ommission to its rules. ‘Consequently, our review is limited to a

determination whether the [C]ommission’s interpretation of its own rule was reasonable.’”

Arellano v. Pam E. K’s Donuts Shop, 26 Va. App. 478, 483, 495 S.E.2d 519, 521 (1998)

(quoting Classic Floors, Inc. v. Guy, 9 Va. App. 90, 93, 383 S.E.2d 761, 763 (1989)).

In the case at bar, the Commission declined to award fees and costs to the claimant. The

Commission found the employer’s defenses to be reasonable because they were successful. The

Commission also found that Rule 1.8(G) did not apply because the attending physician, Chandra,

provided adequate information via written answers to the questionnaires he was given, as well as

extensive opinions noted in the medical records submitted to the Commission. Although a

claimant may request clarification of answers on questionnaires via interrogatories or a

deposition, the employer is not obliged to pay for such clarification. Id. Deposition costs are

only awarded to claimants when the doctor in question is uncooperative, and in this case Chandra

-9- cooperated in every possible way. The Commission’s decision not to award attorney’s fees or

the costs of the deposition in question was in keeping with its own prior decisions and reflects a

reasonable interpretation of its own rules. Accordingly, this Court finds that the Commission

acted within its discretion and therefore affirms its decision.

IV. CONCLUSION

The Commission’s factual determination that claimant’s requested treatment was not

causally related to his original compensable injury, and its subsequent finding that a change in

physician was unwarranted, were not plainly wrong and were supported by credible evidence.

Furthermore, the Commission acted within its discretion by refusing to award claimant

attorney’s fees and deposition costs. Therefore, this Court affirms the Commission’s opinion in

its entirety.

Affirmed.

- 10 -