Sandra T. Johnson v. Cracker Barrel, etc.

• Court: Court of Appeals of Virginia
• Decided: December 12, 1995
• Docket: 0124953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Overton Argued at Salem, Virginia

SANDRA T. JOHNSON

v. Record No. 0124-95-3 MEMORANDUM OPINION * BY JUDGE NELSON T. OVERTON CRACKER BARREL OLD COUNTRY STORE DECEMBER 12, 1995 AND LIBERTY MUTUAL INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Terry L. Armentrout (Roger Ritchie & Partners, P.L.C., on brief), for appellant.

J. Ross Newell, III (Thomas G. Bell, Jr.; Timberlake, Smith, Thomas & Moses, P.C., on brief), for appellees.

Sandra Johnson appeals from the commission's opinion

ordering her to choose a new treating physician. She contends

that the commission (1) erred in ordering her to change

physicians without giving her notice and an opportunity to defend

and (2) lacked authority to order a change of physicians on its

own motion. We vacate the order of the commission.

Johnson injured her back while working for Cracker Barrel.

Cracker Barrel did not supply her with a panel of physicians

within the statutorily required time period, and Johnson

independently sought the services of Dr. Pleskonko, a

chiropractor. Two months later, Cracker Barrel requested that

Johnson choose a physician from its offered panel. Johnson * Pursuant to Code § 17-116.010 this opinion is not designated for publication. refused. Cracker Barrel filed an application for hearing raising

the issue of whether Dr. Pleskonko was an authorized physician.

The deputy commissioner found that the employer had not

timely offered a panel of physicians and that Johnson was

entitled to receive treatment from Dr. Pleskonko. However, the

deputy commissioner ordered Johnson to select a physician from a

new panel to be offered by the employer because of "concern over

[Dr. Pleskonko's] type of maintenance treatment." The commission

affirmed the decision, and allowed Dr. Pleskonko's expenses up to

the date of the hearing. However, the commission also ordered

the employer to offer a new panel of physicians and ordered

Johnson to select one as her treating physician. The commission does have statutory authority to order a

change in physicians. The relevant portion of the Code states: As long as necessary after an accident, the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician chosen by the injured employee from a panel of at least three physicians selected by the employer and such other necessary medical attention. . . . The employee shall accept the attending physician, unless otherwise ordered by the commission, and in addition, such surgical and hospital service and supplies as may be deemed necessary by the attending physician or the commission.

Code § 65.2-603(A)(1). We do not believe that an expansive

reading of the statute is required to conclude that upon proper

application and in appropriate circumstances the commission may

order a claimant to change physicians. Indeed, the commission

- 2 - itself has stated that it will order a change in circumstances if

(1) inadequate treatment is being rendered; (2) it appears that

specialized treatment is necessary and not being provided; (3) no

improvement in the health condition is being made without an

adequate explanation; (4) conventional modalities of treatment

are not being used; (5) no plan of treatment for long-term

disability exists; or (6) a physician fails to cooperate with

discovery proceedings. Powers v. J.B. Constr., 68 O.I.C. 208,

211 (1989) (construing § 65.1-88 (now § 65.2-603)). In this case, however, the employer did not request that the

commission order a change in physicians. Thus, Johnson had no

notice from either the employer or the commission that the issue

of change in physicians was to be considered. Johnson was

entitled to the opportunity to be heard and present evidence

before having such a change made. Cf. Celanese Fibers Co. v.

Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 689-90 (1985)

(refusing to consider an issue not stated in the application).

"An elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is notice reasonably

calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an

opportunity to present their objections." Oak Hill Nursing Home,

Inc. v. Back, 221 Va. 411, 417, 270 S.E.2d 723, 726 (1980)

(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 314-15 (1950) (citations omitted)).

- 3 - In response to the actual question posed by the employer,

the commission ordered that Dr. Pleskonko be paid for his

services until the date of the deputy commissioner's hearing,

deeming him to be an authorized physician. As such, Dr.

Pleskonko remains the authorized physician because his removal

has been vacated by this order, subject to future motions by the

parties and the orders of the commission.

Accordingly, we hold that the commission erred in changing

Dr. Pleskonko's status as an authorized physician without first

giving notice to Johnson and providing her an opportunity to

defend against the change. See Sergio's Pizza v. Soncini, 1 Va.

App. 370, 375-76, 339 S.E.2d 204, 207-08 (1986) (discussing

proper notice of an issue). We therefore vacate the commission's

decision and remand for such further actions as the parties to

the proceeding and the commission may elect.

Reversed and remanded.

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