Wellmore Coal Corporation v. Williamson

• Court: Court of Appeals of Virginia
• Decided: January 13, 1998
• Docket: 1175973
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

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

WELLMORE COAL CORPORATION AND UNITED AFFILIATES CORPORATION MEMORANDUM OPINION * BY v. Record No. 1175-97-3 JUDGE NELSON T. OVERTON JANUARY 13, 1998 TOMMY M. WILLIAMSON

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION S.T. Mullins (Street, Street, Street, Scott & Bowman, on brief), for appellants.

Gregory E. Camden (Rutter & Montagna, on brief), for appellee.

Wellmore Coal Corporation and United Affiliates Corporation

(employer) appeal a ruling of the Virginia Workers' Compensation

Commission finding that Tommy Williamson (claimant) has suffered

a change in condition and, therefore, is entitled to a

reinstatement of benefits and payment of medical expenses.

Employer contends on appeal that there was insufficient evidence

to prove that claimant has suffered a change of condition

attributable to his industrial accident or that medical expenses

flowing from this change are the responsibly of employer. In the

alternative, employer asks that we remand the case to the

commission for a finding of claimant's residual work capacity.

Because we find that there is sufficient evidence to support the

commission's decision, we affirm. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. The parties are fully conversant with the record in the

cause, and because this memorandum opinion carries no

precedential value, we recite only those facts necessary for

disposition of this appeal.

"We will not disturb the factual determination of causation

if credible evidence supports the finding, even if the record

contains evidence to the contrary." Food Distributors v. Estate

of Hall, 24 Va. App. 692, 704, 485 S.E.2d 155, 161 (1997) (citing Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d

814, 817 (1989)). When there is conflicting medical evidence,

"the trier of fact is left free to adopt that view which is most

consistent with reason and justice." Pilot Freight Carriers,

Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1985).

So viewed, the evidence firmly established that claimant

suffered a change in his condition and the medical treatment

received by him was causally related to this change.

The commission was faced with conflicting medical evidence

on the issue of whether claimant's continued back pain was

related to his industrial accident of October 5, 1993. Reports

from seven different doctors were contained in the record, most

coming to widely disparate conclusions. The commission chose to

believe the report of Dr. Steven Poletti, claimant's last

treating physician and the only one to have discovered the cause

of claimant's pain. It was Dr. Poletti's opinion that claimant

suffered from "disk disruption and herniation" and that the

2 injury was at least two years old, dating back to the time of

claimant's work injury. While other doctors disagreed, the

commission specifically chose to adopt Dr. Poletti's opinion and

discount the others. Because the opinion of a board certified

orthopedist as to the cause and treatment of back pain

constitutes sufficient evidence to support a finding of

causation, we may not disturb it on appeal. See Code

§ 65.2-706(A). Once we have determined that the treatment was medically

necessary, the question becomes whether employer must pay for it.

Under Code § 65.2-603(C) the commission may order an employer to

pay for "a physician other than that provided by the employer" if

there is an emergency, employer failed to provide a doctor or

"for other good reasons." We stated in Shenandoah Products, Inc.

v. Whitlock, 15 Va. App. 207, 213-14, 421 S.E.2d 483, 486 (1992),

that the "other good reasons" exception is applicable if a

claimant in good faith, obtains medical treatment different from that provided by the employer, and it is determined that the treatment provided by the employer was inadequate treatment for the employee's condition and the unauthorized treatment received by the claimant was medically reasonable and necessary treatment, the employer should be responsible.

Here, claimant's predicament is remarkably similar to that in

Shenandoah. As we have previously stated, Dr. Poletti and his

associate, Dr. Warren, were the first ones to diagnose and treat

3 claimant's condition. None of employer's doctors had done so.

Therefore, the treatment was both necessary and different from

that provided by employer. Further, claimant acted in good

faith. Dr. Nadar, claimant's previously unsuccessful treating

physician, had recommended that claimant seek another doctor

closer to his home in South Carolina. There is nothing else in

the record to indicate that claimant had any other ulterior

motive to his change of physicians other than to seek effective

treatment for his injury. Under these circumstances, we cannot

say that the commission was wrong when it found employer

responsible for medical expenses under Code § 65.2-603(C). Employer's final contention is that claimant failed to

market his residual work capacity. For an injured employee to

receive benefits, he must make an effort to market his remaining

capabilities. See Virginia Wayside Furniture, Inc. v. Burnette,

17 Va. App. 74, 78, 435 S.E.2d 156, 159 (1993). However, the

record shows that the issue, while raised at the deputy

commissioner's hearing, was not raised to the full commission and

no evidence was presented on it by either party. Accordingly,

the commission did not err by not addressing the question.

Because we agree with the commission on the issue of

employer liability, we affirm its decision.

Affirmed.