Susan Elaine Manola v. Fairfax County School Board

• Court: Court of Appeals of Virginia
• Decided: January 28, 2003
• Docket: 1138024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Agee Argued at Alexandria, Virginia

FAIRFAX COUNTY SCHOOL BOARD

v. Record No. 1119-02-4

SUSAN ELAINE MANOLA MEMORANDUM OPINION∗ BY JUDGE ROSEMARIE ANNUNZIATA SUSAN ELAINE MANOLA JANUARY 28, 2003

v. Record No. 1138-02-4

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Michael N. Salveson (Hunton & Williams, on briefs), for Fairfax County School Board.

Kathleen G. Walsh (Law Offices of Kathleen Walsh, on briefs), for Susan Elaine Manola.

The Fairfax County School Board ("employer") appeals the

decision of the Workers' Compensation Commission ("commission"),

finding employer responsible for the cost of medical treatment

provided to Susan Manola ("claimant") from November 2000 through

July 16, 2001, and ordering employer to provide claimant with a

new panel of physicians. Employer appeals the decision on the

following grounds: 1) the treatment claimant received between

November 2000 and July 2001 was not reasonable and necessary, 2)

claimant did not have a valid referral for her treatment between

____________________ * Pursuant to Code § 17.1-413, this opinion is not designated for publication. November 2000 and July 2001, and 3) a new panel of physicians

was not required because claimant already had an authorized

treating physician. Claimant cross-appeals on the ground that

the trial court should have required employer to prove

claimant's treatment by one doctor, Dr. Levin, was inappropriate

in order to justify terminating his treatment.

Background

On appeal from a decision of the commission, we review the

evidence in the light most favorable to claimant, the party

prevailing below. Lynchburg Foundry Co. v. Goad, 15 Va. App.

710, 712, 427 S.E.2d 215, 217 (1993). We will uphold the

commission's decision so long as there is credible evidence to

support it. Id. "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." Wagner Enters., Inc. v.

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

Claimant is a music teacher. On February 2, 2000, she

sustained a compensable injury by accident when she slipped on

ice at work and fell on her outstretched arm. Claimant

complained of pain in her hand, wrist, arm, neck, shoulder and

back resulting from the accident. After claimant injured

herself, employer presented her with a panel of physicians and

she selected Dr. Edward Alexander, an orthopedic surgeon, as her

- 2 - treating physician. 1 On February 14, 2000, claimant saw

Dr. Alexander for the first time. Dr. Alexander referred

claimant to Dr. Steven Levin, at her request, for manipulation

and trigger point injections because he had treated her for

similar problems since 1975.

On November 13, 2000, Dr. Alexander contacted employer's

claims representative and questioned whether claimant's

continued treatment with Dr. Levin was warranted. Dr. Alexander

stated in his letter to the representative:

[A]t this point, I find it difficult to justify further treatments. The [claimant] still complains of pain in her neck, but she has very little in the way of objective findings to substantiate these allegations. At this point, I feel that though she has not reached maximum medical improvement that her treatment with Dr. Levin should be sufficient at least as of the first of November and I find it difficult to justify further treatments. Probably, you should communicate with Dr. Levin to find out his opinion on this and what his justifications are for continuing treatment.

Dr. Levin immediately issued a report in favor of

continuing claimant's treatment, stating she had made

improvements under his care and that she continued to require

his medical treatment. When claimant expressed concern about

Dr. Alexander's intent to curtail her treatments with Dr. Levin,

Dr. Alexander recommended she visit the Center for Physical

1 Under Code § 65.2-603, employer is required to provide employee with a panel of at least three physicians from which to select a treating physician. - 3 - Medicine and Pain Management ("CPMPM") for a consultation to

determine the appropriateness of claimant's treatment with

Dr. Levin.

Claimant saw Dr. Alexander on January 4, 2001, and he

reported she was "depressed . . . tearful . . . and very angry"

because she had not received treatment from Dr. Levin in several

weeks. He noted claimant required "some sort of treatment" and

instructed her to treat with Dr. Levin every two weeks pending

the completion of an evaluation by Dr. James Johnsen at CPMPM.

On January 4, 2001, claimant saw Dr. Johnsen, who performed

an electrodiagnostic consultation on claimant that was normal.

He issued a report stating claimant had seen Dr. Levin 46 times

and was still "quite symptomatic." He recommended a more

limited approach to treatment, stating "My opinion is that,

after 46 treatments with manipulation [with Dr. Levin], I do not

feel that any more treatments will have any effect on the

patient's underlying condition . . . ."

On February 26, 2001, Dr. Alexander contacted employer's

claims representative and stated he "would tend to agree" with

Dr. Johnsen. He told the representative that treatment with

Dr. Levin should be terminated, but failed to provide a

definitive date when treatment was to cease.

Claimant returned to Dr. Alexander on February 26, 2001.

She told him she was unhappy with Dr. Johnsen, had no confidence

- 4 - in him, and did not want to be treated by him. Dr. Alexander

reported in his physician's notes from that day:

I am not doing anything further for her at this time and she does not want to be treated by Dr. Johnsen, so this essentially leaves Dr. Levin who has been treating her and is the only one who seems to be having any kind of success. I do not really need to see her anymore and I would recommend that Dr. Levin be considered her treating physician barring periodic evaluations to determine her progress. She seems to be doing better, she is working, so there is something to be said for her success.

Dr. Levin treated claimant 29 times between January 8, 2001

and June 14, 2001. His reports indicate claimant improved

slightly under his care, but upon each return visit, her

complaints were similar to those in her previous visit.

In July 2001, Dr. Alexander found that Dr. Levin's course

of treatment was not reasonable and necessary, stating "there

must be an endpoint" and that treatment by Dr. Levin should

cease after July 16, 2001 because claimant was not "getting any

better."

The deputy commissioner concluded that Dr. Levin's

treatment was "neither authorized, reasonable, nor necessary"

after November 1, 2000. The full commission reversed and found

the employer was responsible for Dr. Levin's treatment after

November 1, 2000. The commission further found Dr. Levin's

treatment was not reasonable or necessary after July 16, 2001.

Finally, the commission ordered employer to offer claimant a new

- 5 - panel of physicians because Dr. Alexander "had ceased his role

as treating physician."

Analysis

I. Referral

Employer argues that Dr. Alexander did not refer claimant

to Dr. Levin, claiming he merely acknowledged that she preferred

his treatment and acquiesced to her wishes. We disagree and

find credible evidence supports the commission's finding that

Dr. Alexander referred claimant to Dr. Levin and that the

referral continued without revocation until July 16, 2001.

The employer's responsibility for medical expenses under

Code § 65.2-603 depends upon "(1) whether the medical service

was causally related to the industrial injury; (2) whether such

other medical attention was necessary; and (3) whether the

treating physician made a referral of the patient." Volvo White

Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906

(1985); Code § 65.2-603. A claimant bears the burden of proof

on these issues by a preponderance of the evidence. McGregor v.

Crystal Food Corp., 1 Va. App. 507, 508, 339 S.E.2d 917, 918

(1986). Claimant selected Dr. Alexander as her treating

physician from the panel provided to her by employer.

Therefore, Dr. Alexander was vested with the authority to refer

claimant to specialists and to determine whether medical

attention was authorized, reasonable, and necessary. See Jensen

Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525 (1985) - 6 - (decided under former Code § 65.1-88, predecessor to Code §

65.2-603) ("[M]edical management of the claimant is to be

directed by the treating physician . . . .").

Viewing the evidence in the light most favorable to

claimant, we find credible evidence supports the commission's

conclusion that claimant had a valid, continuous referral from

Dr. Alexander to treat with Dr. Levin from November 2000 until

July 16, 2001. Dr. Alexander first referred claimant to

Dr. Levin on February 14, 2000, shortly after her accident. In

November 2000, Dr. Alexander questioned whether treatments with

Dr. Levin should continue, but he did not establish a specific

end date. Indeed, on January 4, 2001, Dr. Alexander explicitly

recommended claimant continue to treat with Dr. Levin, when he

reported "I would recommend that she re-institute the treatments

with Dr. Levin approximately every two weeks . . . . "

Dr. Alexander saw claimant again on February 26, 2001 and, in

his notes from the visit, wrote: "I am not doing anything for

her at his time . . . so this essentially leaves Dr. Levin, who

has been treating her and is the only one who seems to be having

any kind of success."

We further find the evidence in the record supports the

commission's determination that Dr. Alexander revoked his

referral to Dr. Levin effective July 16, 2001. At that time,

Dr. Alexander found the treatment was no longer "reasonable and

necessary" and stated it should end on July 16, 2001. - 7 - II. Reasonable and Necessary Medical Attention

The commission awarded claimant benefits for medical

expenses she incurred from November 2000 through July 16, 2001.

Employer appeals the ruling on the ground that claimant's

treatment by Dr. Levin between those dates was not reasonable

and necessary medical attention within the meaning of Code

§ 65.2-603. Because the commission made no findings as to the

necessity or reasonableness of claimant's medical treatment for

that time period, and we cannot determine from the record that

it considered these criteria before making its award, the

commission's award was erroneous. 2

III. New Panel of Physicians

Employer further contends the commission erred when it

required employer to provide a new panel of physicians to

claimant after Dr. Alexander ceased treating her. We disagree.

In the case at bar, the evidence establishes that

Dr. Alexander ceased being claimant's treating physician on

February 26, 2001. On that date, Dr. Alexander told claimant to

continue her treatments with Dr. Levin and recommended that

"Dr. Levin be considered her treating physician . . . ." On

2 The deputy commissioner found that claimant's treatment between November 2000 and July 16, 2001 was not "authorized, reasonable or necessary." Although the full commission stated it "affirmed in part and reversed in part" the deputy commissioner's opinion, the commission did not make clear whether it reversed the deputy commissioner's finding that the medical treatment for those dates was unreasonable and unnecessary. - 8 - July 16, 2001, however, Dr. Alexander revoked his referral to

Dr. Levin when he stated Dr. Levin's treatment was not

reasonable and necessary. Thus, as of July 16, 2001, claimant

no longer had a treating physician and required a new panel from

which to select a new physician. See, e.g., H.J. Holz & Son,

Inc. v. Dumas-Thayer, 37 Va. App. 645, 656, 561 S.E.2d 6, 15-16

(2002).

IV. Claimant's Cross Appeal

Claimant cross-appeals on the ground that the commission

erred when it failed to require employer to prove Dr. Levin's

treatment was "inappropriate" in order to terminate his

compensable treatment of claimant. 3

Code § 65.2-603 states: "[a]s long as necessary after the

accident, the employer shall furnish or cause to be furnished,

free of charge to the injured employee, a physician . . . and

such other necessary medical attention." "Whether 'such other

medical attention' be deemed necessary is for the attending

physician or . . . commission to determine . . . ." Jensen

Press, 1 Va. App. at 159, 336 S.E.2d at 525 (quoting Code §

65.1-88, predecessor to Code § 65.2-603). Therefore, when a

treating physician determines claimant's medical attention is no

longer "necessary and reasonable," an employer is no longer

3 Claimant uses the term "inappropriate" rather than the statutory terms "reasonable and "necessary." For the purposes of this opinion, we treat the issue as one addressing the statutory requirements. - 9 - required to cover claimant's medical expenses. Volvo White

Truck Corp., 1 Va. App. at 200, 336 S.E.2d at 906.

In the case at bar, the commission found that claimant's

treating physician, Dr. Alexander, determined Dr. Levin's

treatment would not be "reasonable and necessary" after July 16,

2001. The employer, thus, was no longer responsible for medical

expenses claimant incurred for Dr. Levin's treatment. There is

credible evidence to support the commission's finding.

Throughout claimant's treatment by Dr. Levin, Drs. Alexander and

Johnsen repeatedly expressed doubts that the treatment was

necessary and reasonable. As early as November 2000,

Dr. Alexander stated he could not justify Dr. Levin's treatment

after November 2000. As the commission noted, "after an

additional eight months of almost weekly care by Dr. Levin,

Dr. Alexander reiterated that his ongoing treatment was

unreasonable and unnecessary. Dr. Johnsen concurred with

Dr. Alexander's opinion in January 2001." Thus, the medical

records and opinions of Drs. Alexander and Johnsen provide

credible evidence to support the commission's finding that

claimant's treatment after July 16, 2001 was not reasonable or

necessary.

V. Conclusion

In summary, we find credible evidence supports the

commission's determination that claimant had a valid referral for

treatment with Dr. Levin from November 2000 through July 16, 2001

and that the referral was revoked effective July 16, 2001. - 10 - Additionally, the evidence supports the commission's finding that

Dr. Levin's treatment after July 16, 2001 was no longer

reasonable and necessary and, thus, was not compensable.

We reverse the commission's award for benefits from November

2000 through July 16, 2001 on the ground that it made no findings

that treatment for that time period was reasonable and necessary.

We remand to the commission for further consideration of the

issue.

Finally, we affirm the commission's decision to award

claimant a new panel of physicians.

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

- 11 -