Williamsburg Soap, etc. v. Debra J. Eames

• Court: Court of Appeals of Virginia
• Decided: August 5, 1997
• Docket: 0779971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

WILLIAMSBURG SOAP & CANDLE COMPANY AND CONTINENTAL INSURANCE COMPANY MEMORANDUM OPINION * v. Record No. 0779-97-1 PER CURIAM AUGUST 5, 1997 DEBRA J. EAMES

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Roya Palmer; Law Offices of Richard A. Hobson, on brief), for appellants.

(Byron A. Adams, on brief), for appellee.

Williamsburg Soap & Candle and its insurer (hereinafter

collectively referred to as "employer") appeal a decision of the

Workers' Compensation Commission (commission) refusing to suspend

Debra J. Eames' (claimant) award of workers' compensation

benefits. Employer contends that the commission erred in finding

that claimant did not unjustifiably refuse medical treatment from

Dr. Lisa B. Barr. Finding no error, we affirm the commission's

decision.

On March 28, 1995, claimant sustained a compensable right

shoulder and arm injury. On or about February 29, 1996,

claimant's treating physician, Dr. Jeffrey D. Moore, an

orthopedic surgeon, referred claimant to Dr. Barr, a physiatrist.

Claimant first treated with Dr. Barr on March 29, 1996.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Claimant described that treatment as very painful and the

examination as barbaric. Claimant testified that Dr. Barr

climbed on top of the examining table, took claimant's right arm

and placed it in the middle of claimant's back, and then put her

knee on claimant's back and yanked on claimant's right shoulder.

Dr. Barr then subjected claimant to at least four cortisone

shots to her back, shoulder, and arm, even though claimant was in

tears and had told Dr. Barr that such treatment had not provided

her with relief in the past. Dr. Barr wanted to place two more

shots under claimant's armpit, but claimant refused. After the

shots, claimant could not move her arm. Dr. Barr instructed

claimant that she could return to work the following Monday and

gave her a prescription for medication. After the March 29, 1996 treatment, claimant contacted Dr.

Moore, who agreed that she would not be required to continue

treating with Dr. Barr. Claimant testified that Dr. Moore gave

her permission to return to Dr. Kevin R. Bedell, her family

physician. On April 5, 1996, Dr. Bedell noted that claimant "was

last seen by Dr. Barr, who gave her trigger point injections

which created more pain from her aspect." Dr. Bedell recommended

a referral to a pain clinic at the Williamsburg Community

Hospital for myofascial manipulation rather than injections. On

April 10, 1996, claimant treated with Dr. Mark W. Newman at the

pain clinic. Dr. Newman administered manipulative treatment and

nerve blocks. On April 12, 1996, Dr. Bedell reported that

2 claimant "is feeling markedly better, still has some pain, but is

very pleased."

On April 12, 1996, claimant returned to Dr. Barr due to a

previously scheduled follow-up appointment. At that time,

claimant informed Dr. Barr that her treatment had caused claimant

increased pain. Claimant did not receive any treatment from Dr.

Barr on April 12, 1996. At that time, Dr. Barr noted that

claimant was "basically not interested in continuing medical care

under my direction." Dr. Barr did not note on April 12, 1996

that she had scheduled any follow-up appointment for claimant.

In addition, claimant testified that no such appointment was

planned. Employer then scheduled an appointment for claimant

with Dr. Barr on May 3, 1996. Claimant did not attend that

appointment. On May 17, 1996, claimant returned to Dr. Moore.

Dr. Moore noted that he did not object to claimant discontinuing

her treatment with Dr. Barr and continuing her treatment with Dr.

Bedell. The relevant question is not whether the procedures employed

by Dr. Barr were justified, but whether claimant's refusal to

submit to further treatment by Dr. Barr was justified. See

Holland v. Virginia Bridge & Structures, Inc., 10 Va. App. 660,

662, 394 S.E.2d 867, 868 (1990). "The matter of justification

must be considered from the viewpoint of the patient and in light

of the information which was available to [her]." Id.

Claimant's uncontradicted testimony that she was subjected

3 to an unnecessarily painful examination and treatment on March

29, 1996 by Dr. Barr, which worsened her condition, supports the

commission's finding that claimant was justified in seeking

alternative treatment from Dr. Bedell. 1 Dr. Bedell's treatment

proved productive and provided claimant with pain relief.

Furthermore, claimant's failure to attend the May 3, 1996

appointment with Dr. Barr is of no moment. As the commission

correctly noted, the treating physician, not the employer or its

representative, directs the medical management of the employee.

Given the circumstances in this case, we find that the commission

did not err in holding that claimant did not refuse medical

treatment without justification. For these reasons, we affirm the commission's decision.

Affirmed.

1 Employer incorrectly asserts that the commission found Dr. Bedell not to be an authorized treating physician. To the contrary, the commission vacated the deputy commissioner's finding that Dr. Bedell was a valid referral from Dr. Moore because employer did not have notice that the issue of a change in treating physicians would be decided by the deputy commissioner. However, the commission noted that the employer does not determine the medical treatment. Rather, medical management of the employee is to be directed by the treating physician. See Jensen Press v. Ale, 1 Va. App. 153, 158, 336 S.E.2d 522, 525 (1985).