COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole Argued at Richmond, Virginia
VIRGINIA ELECTRIC & POWER COMPANY MEMORANDUM OPINION * BY v. Record No. 1927-96-2 JUDGE JAMES W. BENTON, JR. MARCH 11, 1997 OLA J. THORPE BOBBITT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kathryn Spruill Lingle (Midkiff & Hiner, P.C., on brief), for appellant. P. George Eliades II (Eliades & Butterworth, on brief), for appellee.
Virginia Electric & Power Company contends that the
commission erred in ruling that the Company was required to pay
for medical treatment that Ola J. Thorpe Bobbitt received from
Dr. Mark E. deBlois. We disagree and affirm the commission's
decision.
I.
The commission's decision that the Company was responsible
for the treatment Bobbitt received from Dr. deBlois was based
upon the commission's consideration of the testimony and other
evidence in the record. We review the commission's decisions
under well established principles. We must uphold the
commission's factual findings when those findings are supported
by credible evidence. See Code § 65.2-706; James v. Capitol
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989). Consistent with that principle are the following
additional principles of appellate review: We do not retry the facts before the Commission nor do we review the weight, preponderance of the evidence, or the credibility of witnesses. If there is evidence or reasonable inference that can be drawn from the evidence to support the Commission's findings, they will not be disturbed by this Court on appeal, even though there is evidence in the record to support contrary findings of fact.
Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d
507, 510-11 (1983).
II.
To implement these principles on appeal, we view the
evidence in the light most favorable to Bobbitt, who prevailed
before the commission. See R.G. Moore Bldg. Corp. v. Mullins, 10
Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So viewed, the
evidence proved that in 1991 Bobbitt sustained compensable back
and shoulder injuries while employed by the Company. Initially,
Bobbitt was treated by Dr. Thomas Butterworth. Dr. Butterworth
operated on her left shoulder. During the course of his
treatment for her back injury, Dr. Butterworth referred Bobbitt
to Dr. Kenneth I. Kiluk for a neurosurgical consultation. Dr.
Kiluk ordered a myelogram, which "did not demonstrate any
evidence of [a] disc problem." However, a CAT Scan indicated
"central disc herniation L5-S1." Dr. Kiluk gave her injections,
but noted that he saw nothing to do "from a neurosurgical point
- 2 - of view."
Dr. Butterworth provided epidural blocks and other treatment
for Bobbitt's disc problems at L5-S1. He also ordered MRIs in
1993 which showed Bobbitt had significant disc herniation.
During these treatments, Bobbitt developed psychiatric problems
and was referred to a psychiatrist. She was hospitalized in 1993
for major depression that was related to her ongoing chronic
pain. During her hospitalization, she was sent to see Dr. Harold
Young, another neurosurgeon. Dr. Butterworth noted that Dr.
Young "is talking about surgery." In May of 1993, Dr. Butterworth discussed with Bobbitt the
surgical option of removal of a disc and fusion. His reports
indicate that she was still in depression and very hesitant about
surgery. Bobbitt's psychiatric therapist noted that Bobbitt "had
it out [with] Dr. Butterworth, who has now advised surgery." In
September of 1993, Dr. Butterworth stated that he had "nothing to
offer [Bobbitt] except epidural and surgery."
Bobbitt continued to experience severe pain and became
distrustful of Dr. Butterworth. With the concurrence of
Bobbitt's therapist, Bobbitt's psychiatrist referred Bobbitt to
Dr. Harold Young, the neurosurgeon who had treated her while she
was hospitalized. After that referral, Bobbitt's psychiatrist
retired from practice. Another psychiatrist, Dr. S. K. Niazi,
became her treating physician. Dr. Niazi continued to treat
Bobbitt for major depression, changed her medication, and
- 3 - monitored her progress with Dr. Young.
Following his examination of Bobbitt, Dr. Young, who earlier
was "talking about surgery," noted that she "has no focal
neurological deficit but does have limitation of straight leg
raising bilaterally and . . . she is not a good candidate for
lumbar diskectomy for the degenerated disk." Dr. Niazi's notes
indicate, however, that Bobbitt continued to experience pain and
that she now was willing to reconsider surgery. Bobbitt told Dr.
Niazi that she wanted another opinion concerning surgery and
asked him for the name of an orthopaedic surgeon. Dr. Niazi's
notes state that Dr. Young, the neurosurgeon, "cannot operate on
her back." In September 1994, Dr. Niazi wrote to Dr. deBlois, who is
associated with the same clinic as Dr. Butterworth. He stated
the following: The above named is my patient and has asked to be referred to you for a second opinion of her back problems. She has already scheduled an appointment with you. Also, she has asked that after you see her you then refer her back to her other physician for follow up care.
Dr. deBlois examined Bobbitt, noted that her last MRI was done in
May 1993, and showed a large disc herniation. After Dr. deBlois
ordered a repeat MRI, he recommended surgery.
Bobbitt returned to Dr. Niazi after her evaluation by Dr.
deBlois. Dr. Niazi made the following notation of that visit: Reports that she has been doing somewhat better emotionally. She has gone to another [d]octor who is going to operate on her in 2
- 4 - weeks. She is going to have surgery on her back and there is some fear about that but patient is able to accept it and mostly talked about those feelings in this session. We provided support therapy. We will see the patient after surgery. Continue current treatment plan.
Dr. deBlois performed the surgery two weeks after Bobbitt's
visit to Dr. Niazi. Dr. Niazi saw her after the surgery and
noted that he was "continuing the current treatment plan,
medications. She was seen for supportive therapy and will [be]
reevaluate[d] in four weeks." III.
Code § 65.2-603 requires an injured employee to accept
reasonable and necessary care occasioned by an occupational
injury. "Whether the employer is responsible for medical
expenses . . . depends upon: (1) whether the medical service was
causally related to the [compensable] injury; (2) whether such
other medical attention was necessary; and (3) whether the
treating physician made a referral to the patient." Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906
(1985). "Medical evidence . . . is subject to the commission's
consideration and weighing." Hungerford Mechanical Corp. v.
Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).
The Company does not dispute the causal relation between the
injury and the surgery or the need for medical treatment.
Moreover, the commission found, and credible evidence proved,
that Dr. Niazi was Bobbitt's treating physician. The Company
- 5 - also does not contest that finding. The Company contends that
the evidence does not support the commission's conclusion that
Bobbitt received a referral from Dr. Niazi to Dr. deBlois. That
argument is meritless.
On the evidence in the record, the commission found as
follows: The Deputy Commissioner found that the treatment by Dr. deBlois is authorized because of a referral by the treating psychiatrist. The employer argues that Dr. Niazi referred the claimant to Dr. deBlois only for a second opinion, not for treatment. However, the record does not support this. Initially, Dr. Niazi wrote that the claimant only wished to have a second opinion by Dr. deBlois, and wanted then to return to her neurosurgeon for follow-up care. However, it is clear that the claimant reconsidered and acquiesced in Dr. deBlois' recommendation of surgery, which was opposed by Dr. Young but supported by her previous orthopedist, Dr. Butterworth. Dr. Niazi's records indicate that he was aware of and consented to the claimant's decision to pursue orthopedic care and surgery with Dr. deBlois. Therefore, the continued treatment and surgery by Dr. deBlois was with the knowledge and consent of an authorized treating physician, Dr. Niazi.
The commission's decision is based on abundant credible
evidence. Dr. Niazi's letter to Dr. deBlois is indisputedly a
letter of referral of Bobbitt to Dr. deBlois. Furthermore, the
evidence clearly proved that Dr. Niazi learned at least two weeks
prior to the planned surgery that Dr. deBlois would perform the
surgery and that Bobbitt accepted the need for the surgery. Dr.
Niazi reported that he was providing support therapy and would
continue with that therapy after surgery. The direct evidence
- 6 - thus proves that Dr. Niazi, Bobbitt's treating physician, made
the referral, was aware of the planned surgery, acquiesced in the
surgery, and planned to provide psychiatric support for Bobbitt
as she prepared for surgery. Both direct credible evidence and
inferences that flow from the evidence prove Dr. Niazi never
objected to surgery, encouraged Bobbitt to accept it, and
continued to provide support to her. Thus, the evidence proved
he consented to the surgery. Moreover, the record clearly
established that the surgery was reasonable medical treatment.
Indeed, it had been previously recommended by Dr. Butterworth. Accordingly, we affirm the award.
Affirmed.
- 7 - Cole, J., dissenting.
I respectfully dissent because I agree with Chairman Tarr's
dissenting opinion finding that the medical treatment rendered by
Dr. Mark E. deBlois was unauthorized.
Decisions of the commission as to questions of fact are
conclusive and binding upon this Court if supported by credible
evidence. However, when the facts are undisputed, as in this
case, the sufficiency of the evidence then becomes one of law.
Breckenridge v. Marval Poultry Co., 228 Va. 191, 196, 319 S.E.2d
769, 772 (1984); Wells v. Commonwealth Dept. of Transp., 15 Va.
App. 561, 563, 425 S.E.2d 536, 537 (1993).
The claimant (Bobbitt) sustained an injury to her back on
May 31, 1991, when she lifted a container while performing her
work duty as a stock helper. She came under the care of Dr.
Thomas R. Butterworth, Jr., an orthopedic surgeon, for treatment.
After two years of conservative treatment, a note in the
medical records summarized Bobbitt's condition: Ms. Ola Bobbitt had an MRI at Chippenham Medical Center on May 13, 1993. This showed a large, central herniated disc at the L5-S1 level. She has continuous back and left leg pain. She is unable to bend or lift and is limited in walking, standing or sitting. . . .
Her only option for treatment at this time is surgery. However, she is also suffering from severe depression at this time and is unable to make a decision regarding surgery.
Her physical condition and severe depression make her unable to perform any type of work at this stage. Her prognosis is not optimistic at this time.
- 8 - Bobbitt had some severe psychiatric problems caused in part
by the accident, but also related to severe family problems. In
a report to the employer on July 14, 1993, her psychiatrist, Dr.
A. M. Masri, stated: Mrs. Bobbitt has remained under my care, has been seen on a weekly basis for supportive therapy. She has also continued to require medication for her severe disturbances of mood. On several occasions, she has displayed frankly manic affect, with pressured speech, flight of ideas, and inappropriate affective quality. Also, she has presented on several occasions severely depressed, reporting overt suicidal impulses, feelings of hopelessness. We were able with a great deal of support to keep her out of the hospital, but this is always a possibility.
Therefore, in the spring of 1993 Dr. Butterworth was
Bobbitt's treating physician for orthopedic problems and Dr.
Masri was the treating physician for psychiatric problems.
In a letter dated September 27, 1993, to the employer, Dr.
Masri advised that he had referred Bobbitt to Dr. Harold Young,
Chairman of Neurosurgery, Medical College of Virginia ("MCV").
Dr. Masri stated that he was in no way criticizing the care given
by Dr. Butterworth, but that Bobbitt had developed strong
negative feelings toward his treatment and focused her feelings
upon Dr. Butterworth. Dr. Masri opined that this was not an
unusual situation but did affect the prognosis and treatment
outcome.
In a letter to the employer dated October 11, 1993, Dr.
- 9 - Butterworth reported that Bobbitt thought of him as a "company
doctor" and refused to have the prescribed epidurals. Dr.
Butterworth stated that Bobbitt's psychiatrist wanted to send her
to Dr. Young at MCV for his opinion. Dr. Butterworth stated that
Dr. Young is a respected neurosurgeon and suggested that the last
MRI be sent to him. Therefore, in October of 1993, the treating
orthopedic physician was changed to Dr. Young with the approval
of Dr. Butterworth, Dr. Masri, and the employer. Shortly thereafter Dr. Masri retired from his psychiatric
practice and Dr. S. K. Niazi became Bobbitt's psychiatric
treating physician. Dr. Niazi first saw Bobbitt for evaluation
on April 19, 1994. Dr. Niazi noted Bobbitt's severe family
problems, depression and the multiple physical problems due to
pain in her back, herniated discs, and shoulder pain.
Drs. Young and Niazi continued as treating physicians. In
an office note dated June 20, 1994, Dr. Niazi recorded that
Bobbitt is very upset; she is in physical pain; she feels like
her neurosurgeon is not paying enough attention to her problem;
and he cannot operate upon her back and she wants another
opinion. Bobbitt asked Dr. Niazi for the names of some
orthopedic surgeons. The record does not reflect that Dr. Niazi
gave Bobbitt any names.
Bobbitt continued to have regular visits with Dr. Niazi.
His office notes on August 8, 1994, indicate Bobbitt is depressed
and has pain. Bobbitt stated she wanted to switch over to
- 10 - another neurosurgeon because she felt she was not getting enough
attention at MCV. Dr. Niazi's office notes on August 31, 1994,
also indicate that Bobbitt is not very happy with her current
neurosurgeon and wants to make a change. At Bobbitt's September
12, 1994 visit, Dr. Niazi did not record any complaint against
Dr. Young, and Dr. Niazi reported that Bobbitt was feeling
better. Dr. Niazi noted that Bobbitt was more stable in mood.
Dr. Niazi asked Bobbitt to continue her medications and to return
in one month. Without any explanation in the record, four days later on
September 16, 1994, Dr. Niazi wrote the following letter to Dr.
Mark deBlois, an orthopedic surgeon, concerning Bobbitt: The above named is my patient and has asked to be referred to you for a second opinion of her back problems. She has already scheduled an appointment with you. Also, she has asked that after you see her you then refer her back to her other physician for follow up care.
At the October 10, 1994 session, Dr. Niazi's office notes
indicate that "[Bobbitt] is going to have surgery on her back and
there is some fear about that but patient is able to accept it
and mostly talked about those feelings in this session."
The record reflects that Bobbitt was admitted to Chippenham
Medical Center on October 19, 1994, for the taking of her history
and medical examination. On October 24, 1994, Dr. deBlois
operated on Bobbitt for lower back and left leg pain.
On November 7, 1994, Bobbitt again visited Dr. Niazi.
- 11 - According to his office notes, Bobbitt was very depressed,
anxious, and crying at this visit. She reported she had back
surgery two weeks ago. She reported that she was not feeling any
better and actually had more pain than before the surgery. She
wanted Dr. Niazi to prescribe antibiotics for her because her
husband thought she should have them after back surgery.
To support its argument that Dr. deBlois became an
authorized physician, the commission reasoned: 1. The claimant reconsidered and acquiesced in Dr. deBlois's recommendation for surgery. 2. Dr. Niazi's records indicate that Dr. Niazi was aware of and consented to the claimant's decision to pursue surgery with Dr. deBlois.
3. Therefore, the continued treatment and surgery by Dr. deBlois was with the knowledge and consent of the authorized physician.
The record establishes that Dr. Niazi was aware of and had
knowledge that Dr. deBlois was going to perform surgery upon
Bobbitt's back. On September 16, 1994, Dr. Niazi had requested a
second opinion from Dr. deBlois. On October 10, 1994, according
to Niazi's office notes, Bobbitt advised him that she had gone to
another doctor and that she was to be operated upon in two weeks.
However, there is nothing in the record to prove that Dr. Niazi
consented to the surgery. Moreover, whether he consented is
totally irrelevant to the issue in this case whether Dr. deBlois
became an authorized physician.
In order to hold an employer liable for medical expenses,
the claimant must prove that the service was causally related to
- 12 - the industrial accident; that it was necessary; and that the
treating physician made a referral to the patient. Shenandoah
Prods., Inc. v. Whitlock, 15 Va. App. 207, 211, 421 S.E.2d 483,
485 (1992). Without a referral from an authorized treating
physician, the treatment by an unauthorized physician is not the
responsibility of the employer. Id. at 212, 421 S.E.2d at 485.
There are several exceptions to this rule not present in this
case. See Code § 65.2-603(C). When a claimant changes physicians without prior
authorization of employer, insurance carrier, or commission, he
must pay for the medical treatment rendered by the second
physician. Mitchell v. Anchor Warehouses Inc., 49 O.I.C. 223,
226 (1967); Martin v. Miller & Rhoads, Inc., 34 O.I.C. 19, 20-21
(1952).
Whether Dr. Niazi was aware of, had knowledge of, or
consented to Dr. deBlois's surgery are irrelevant. The issue is
whether Dr. Niazi referred Bobbitt to Dr. deBlois for treatment.
The effect of such a referral, had one been made, would have
been to divest Dr. Young as the treating physician in the area of
orthopedics and would have produced an intolerable situation
concerning who was responsible for providing necessary orthopedic
services to the claimant. To Dr. Niazi's good credit, he did not
do this. He requested a second opinion which did not change the
status of anyone. He could use the information obtained from
that opinion to determine if bad orthopedic practices were the
- 13 - cause of any of the psychiatric problems of his patient. If so,
he could pass that on to the employer, carrier, or commission for
appropriate action.
A simple case will illustrate the fallacy of the
commission's ruling. If Bobbitt had walked into Dr. Niazi's
office, as she did here, and told him that she had employed Dr.
deBlois to operate on her back, what should Dr. Niazi's response
have been? He could have advised her to immediately get
permission for the operation from the employer, the insurance
carrier, or the commission. But, he is not responsible for
giving legal advice and may not have felt competent to do so. He
could have said I approve of that and agree that is the proper
thing to do. This still would not have been a referral, and Dr.
Young would remain the treating physician. Bobbitt had every
right to employ Dr. deBlois to perform the operation. Dr. Niazi
had no right to interfere with Bobbitt's choice of a physician.
The only difference is that if she chooses an unauthorized
physician, she, not the employer, is responsible for paying for
the services rendered. When you dissect the majority opinion, it says that Dr.
Niazi consented to the surgery because (1) he never objected to
it; (2) he encouraged Bobbitt to accept surgery; and (3) he
continued to provide psychiatric support to her for the reasons
previously stated. All of these things are irrelevant. Bobbitt
had a right to change physicians at anytime, subject only to the
- 14 - fact that she would have to pay for the services of an
unauthorized physician if she chose one. The fact that Dr. Niazi
did not object, encouraged Bobbitt to accept it, and continued to
provide psychiatric support do not amount to a referral. There
is a big difference in the meaning of consent and a referral.
Again, I would point out that there is absolutely no evidence in
the record that Dr. Niazi consented to Bobbitt changing to Dr.
deBlois and having the surgery. For the reasons stated, I would
reverse the decision of the commission.
- 15 -