COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia
H. J. HOLZ & SON, INC. AND
UNITED CONTRACTORS OF VIRGINIA
GROUP SELF-INSURANCE ASSOCIATION
OPINION BY
v. Record No. 2063-01-2 JUDGE LARRY G. ELDER
MARCH 19, 2002
MATHILDA KARREN DUMAS-THAYER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Linda M. Gillen (Blair Law Offices, on
brief), for appellants.
Robert L. Flax for appellee.
H. J. Holz & Son, Inc., and United Contractors of Virginia
Group Self-Insurance Association (hereinafter collectively
"employer") appeal from a decision of the Workers' Compensation
Commission requiring employer to pay for chiropractic treatment
rendered to former employee Mathilda Karren Dumas-Thayer
(claimant) and to provide her with a panel from which to choose
a new treating physician. We hold the record supports the
commission's conclusion that good reason existed under Code
§ 65.2-603(C) to hold employer financially responsible for
claimant's chiropractic treatment because claimant acted in good
faith, the treatment provided by employer was inadequate, and
the alternative treatment was medically reasonable and
necessary. We also hold the evidence that the treatment
provided by employer was inadequate in terms of pain relief and
joint function supported the commission's conclusion that
employer must provide claimant with a panel from which to choose
a new treating physician. Thus, we affirm the commission's
decision.
I.
BACKGROUND
On February 2, 2000, claimant sustained a compensable
injury to her lower back and left hip while working as a painter
for employer. Following the injury, she received temporary
total and temporary partial disability compensation pursuant to
awards entered by the commission. She was released to full duty
on October 4, 2000, and her compensation award was terminated as
of October 6, 2000. 1
Claimant initially received treatment from Patient First of
Chester and was referred to Dr. William D. Henceroth, an
orthopedic surgeon at the West End Orthopedic Clinic. At the
direction of Dr. Henceroth, claimant also was treated by his
associates, Drs. Charles W. Vokac and E. Claiborne Irby, Jr.
While under the care of these doctors, claimant underwent
various diagnostic testing and treatment, including injections,
1
Claimant sought ongoing disability compensation, but the
deputy commissioner found she was able to return to her
pre-injury employment, and the commission concluded she failed
to file a timely request for review of that finding. She did
not appeal the commission's ruling to this Court.
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physical therapy and work hardening, but she continued to
complain of left hip pain, low back pain and left leg weakness.
On October 4, 2000, Dr. Vokac observed that all claimant's
tests were negative but that a functional capacity evaluation
(FCE) was "inconclusive" and claimant could not tolerate work
hardening. He then wrote,
At this point I don't think there is
anything else that I have to offer her and
based on the fact that testing was within
normal limits and the FCE was inconclusive,
I will release her to full duty without
restrictions. She is concerned that she
cannot perform this and I asked her to
discuss with her case manager her options
under work comp. guidelines.
Claimant apparently sought a referral to Elliot Eisenberg,
a chiropractor, but that request was denied. Despite that
denial, claimant began treating with Eisenberg on October 10,
2000. On October 16, 2000, after claimant had undergone three
visits to Eisenberg, he reported that claimant had begun to
experience significant relief. Eisenberg wrote to Drs. Vokac
and Henceroth to request a workers' compensation referral, but
no such referral was made at that time.
On November 27, 2000, following additional chiropractic
treatment for a total of twenty-two visits, Eisenberg again
wrote to Dr. Vokac, noting that claimant had experienced "some
improvement" with chiropractic treatment but had "reached a
plateau." Eisenberg indicated he suspected claimant might be
suffering from "a trochanteric bursal tear, a tear of the
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restraining ligaments of the hip, or the tensor fascia lata," or
a hip dislocation. Eisenberg noted his inability to perform the
"more involved diagnostics" necessary to confirm or dispel these
suspicions, and he asked that claimant be allowed to return to
Dr. Vokac for additional evaluation.
On December 1, 2000, claimant returned to Dr. Vokac. He
noted claimant's report that chiropractic treatment had "helped
her significantly," and he documented a range of motion greater
than on previous examination. Dr. Vokac also wrote, "now that
we know that chiropractic treatment has helped[,] . . . so
[claimant] can be reimbursed for the treatments, I will just
state in my note that chiropractic treatment does appear to be
helpful and appropriate in this situation." Dr. Vokac
apparently also considered additional diagnostic testing, based
on Eisenberg's suspicions. However, in a letter to employer's
workers' compensation case manager dated December 18, 2000, Dr.
Vokac indicated he had consulted with Drs. Henceroth, Irby and
others and concluded that additional testing was not supported
by the objective findings on examination of claimant. Dr. Vokac
then noted, "[w]ith regards to the chiropractic treatment[s], as
I told you, they seem to have helped per the patient's report.
I don't think it is unreasonable that some chiropractic visits
were performed. It does not seem unreasonable for me to have
[claimant] undergo 5 to 10 chiropractic visits." A copy of this
letter was sent to claimant.
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From November 30, 2000 through January 16, 2001, claimant
underwent eleven additional chiropractic treatments.
Following a hearing on claimant's application for a change
in treating physicians and payment for chiropractic treatment
already rendered, the deputy commissioner ordered employer to
provide claimant with a new panel from which to choose a new
treating physician. The deputy commissioner also held employer
responsible for the chiropractic treatment previously provided
by Chiropractor Eisenberg.
The commission, with one dissent, affirmed the deputy's
award. It noted Dr. Vokac's opinion that "chiropractic
treatment was not unreasonable." It held that Drs. Vokac and
Irby provided "more than adequate treatment relative to
pharmacological treatment and evaluation based on objective
diagnostic studies" but that the treatment nevertheless was
inadequate because it "was not alleviating [claimant's]
complaints" of pain. Thus, based on evidence that the
chiropractic treatment was reasonable and necessary and that the
treatment claimant had been receiving was inadequate in terms of
pain relief, it concluded employer should be responsible for the
chiropractic treatment. Although Dr. Vokac had opined such
treatment should be limited to five or ten occasions, the
commission accorded less weight to this part of his opinion
because Dr. Vokac did not see claimant after she had received
ten treatments from Eisenberg and saw her only after she had
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treated with him "on more than twenty occasions." Thus, the
commission held employer responsible for all of the chiropractic
treatments rendered by Eisenberg.
The commission also held that claimant was entitled to
select a new treating physician from a panel provided by
employer based on its finding that "claimant was not receiving
effective treatment on the basis of palliative pain relief and
joint function."
II.
ANALYSIS
On appeal of a decision of the commission, we construe the
evidence in the light most favorable to the party prevailing
below, and we must uphold the commission's findings of fact if
the record contains credible evidence to support them. See,
e.g., Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 712, 427
S.E.2d 215, 217 (1993).
A.
PAYMENT FOR CHIROPRACTIC TREATMENT
The Workers' Compensation Act contains the following
provisions regarding medical treatment for injured employees:
A. 1. 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 [in
accordance with the Act] and such other
necessary medical attention. . . .
* * * * * * *
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C. If in an emergency or on account of
the employer's failure to provide the
medical care during the period herein
specified, or for other good reasons, a
physician other than provided by the
employer is called to treat the injured
employee, during such period, the reasonable
cost of such service shall be paid by the
employer if [the employer is] ordered to
[make such payment] by the Commission.
D. As used in this section . . . , the
terms "medical attention," "medical
service," "medical care," and "medical
report" shall be deemed to include
chiropractic service or treatment . . . .
Code § 65.2-603 (emphases added).
We have held, under the "other good reasons" test of Code
§ 65.2-603(C), that
if the employee, without authorization but
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,
notwithstanding the lack of prior approval
by the employer. See 2 A. Larson, Workmen's
Compensation Law § 61.12(e) (1992).
Shenandoah Prods., Inc. v. Whitlock, 15 Va. App. 207, 212, 421
S.E.2d 483, 486 (1992). We emphasized that "[r]eimbursement for
unauthorized medical treatment should be the rare exception" and
that "[w]hen an employee seeks treatment other than that
provided by the employer or ordered by the commission, he or she
does so at his or her own peril and risks not being reimbursed."
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Id. at 213, 421 S.E.2d at 486. However, where the record
supports a conclusion by the commission that the employee acted
in good faith, that the treatment provided by the employer was
inadequate, and that the alternative treatment was medically
reasonable and necessary, the employee is entitled to payment
for that alternative treatment. See id. at 212-13, 421 S.E.2d
at 486.
Whether the employee acted in good faith is a credibility
determination. See Christiansen v. Metro Bldg. Supply, 18 Va.
App. 721, 724, 447 S.E.2d 519, 521 (1994), modified on reh'g on
other grounds, 19 Va. App. 513, 453 S.E.2d 302 (1995). Thus, we
will uphold a finding of good faith made by the commission if
the record contains credible evidence to support that finding.
Id. An employee's effort to obtain the approval of the treating
physician or the employer before obtaining alternative treatment
is evidence of good faith. See Whitlock, 15 Va. App. at 213,
421 S.E.2d at 486. Here, the evidence, viewed in the light most
favorable to claimant, indicates that claimant's treating
physician, Dr. Vokac, released her to full duty after opining
that he did not "think [he had] anything else . . . to offer
her." Claimant then "requested referral" to Chiropractor
Eisenberg for treatment, but her request was denied. Only after
Dr. Vokac opined that he had nothing else to offer her did she
obtain alternative treatment. Thus, the record contains
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credible evidence to support the commission's finding that
claimant acted in good faith.
We hold the evidence also supports the commission's
determination that the treatment provided by Dr. Vokac and his
associates was inadequate and that the alternative treatment
provided by Chiropractor Eisenberg was reasonable and necessary.
"[T]he question of whether the disputed medical treatment was
necessary within the meaning of Code § 65.2-603 is a mixed
question of law and fact." Goad, 15 Va. App. at 712-13, 427
S.E.2d at 217. Similarly, we hold that the question of whether
the treatment provided by the employer was inadequate is also a
mixed question of law and fact. Thus, the commission's
conclusions regarding the necessity of the alternative treatment
and inadequacy of the treatment actually provided are not
binding on appeal. See id. In reviewing these issues, we are
guided by the principle that the opinion of the treating
physician is entitled to great weight. See, e.g., Fingles Co.
v. Tatterson, 22 Va. App. 638, 641, 472 S.E.2d 646, 647 (1996).
However, "[m]edical evidence is not necessarily conclusive[; it]
is subject to the commission's consideration and weighing."
Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 214 (1991).
Here, the record supports the commission's conclusion that
the treatment claimant was receiving was inadequate and that the
chiropractic treatment she obtained was reasonable and
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necessary. The Workers' Compensation Act requires that an
"employer shall furnish or cause to be furnished . . . necessary
medical attention." Code § 65.2-603(A)(1) (emphasis added). We
hold, in keeping with prior decisions of the commission, see,
e.g., Davis v. Old Oak Mining, No. 132-47-97, 1997 WL 1081372
(Va. Workers' Comp. Comm'n May 19, 1997), that "necessary
medical attention" as that phrase is used in Code
§ 65.2-603(A)(1) includes palliative treatment. 5 Arthur Larson
& Lex K. Larson, Larson's Worker's Compensation Law §§ 94.04,
94.04(D) (2001) (noting that majority of jurisdictions provide
coverage for palliative treatment); see Grand Lodge Free &
Accepted Masons v. Jones, 590 N.E.2d 653, 655 (Ind. Ct. App.
1992) (noting that palliative treatment methods are allowed
"even under Indiana's restrictive [workers' compensation]
statute," Ind. Code § 22-3-3-4); Harris v. Diamond Constr. Co.,
184 Va. 711, 718 n.2, 36 S.E.2d 573, 576 n.2 (1946) ("'The
holding of the Indiana court is peculiarly persuasive with us
because the Virginia act is based upon that of Indiana.'"
(quoting Basham v. R.H. Lowe, Inc., 176 Va. 485, 494, 11 S.E.2d
638, 642 (1940)); see also Barry v. Western Elec. Co., 485
So. 2d 83, 92 (La. Ct. App. 1986); In re Levesque, 612 A.2d
1333, 1334 (N.H. 1992); Hanrahan v. Township of Sparta, 665
A.2d 389, 394 (N.J. Super. Ct. App. Div. 1995); Trafalgar House
v. Green, 784 A.2d 232, 234-36 (Pa. Commw. Ct. 2001). Further,
we agree with the commission's holding "'that when a claimant
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changes physicians without authorization and realizes
appreciable benefit and relief from said change, that treatment
is considered necessary.'" See Dell'Orco v. Elec. Data Sys.
Corp., No. 180-19-28, 1999 WL 1092293 (Va. Workers' Comp. Comm'n
Oct. 29, 1999) (quoting Wiggins v. Planters Peanuts, 62 O.I.C.
510, 512 (1983)).
Here, credible evidence in the record established that
claimant continued to experience pain while under the care of
Dr. Vokac, and Dr. Vokac indicated on October 4, 2000, "I don't
think there is anything else that I have to offer her."
Thereafter, claimant obtained chiropractic treatment, which she
reported "helped her significantly," and Dr. Vokac documented an
improvement in her range of motion after twenty-two chiropractic
visits. Dr. Vokac discussed the impact of the chiropractic
treatment with claimant and opined that it appeared to be both
"helpful and appropriate" and that claimant's obtaining such
treatment was "not unreasonable." Thus, credible evidence
supports the commission's conclusion that the treatment claimant
had received was inadequate because it did not relieve her pain
and that the chiropractic treatment she obtained on her own was
reasonable and necessary because it provided her with
significant pain relief.
Finally, the record supports the commission's conclusion
that employer should be responsible for all of claimant's
chiropractic visits. Although Dr. Vokac opined that five to ten
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visits would have been reasonable, he did so only after claimant
had undergone over twenty visits. The commission was entitled
to weigh his opinion in light of the treatment claimant actually
received and to conclude that the greater number of visits was
appropriate.
B.
AUTHORITY TO SELECT NEW TREATING PHYSICIAN
We previously have acknowledged that the commission may
order a change in a claimant's treating physician if, inter
alia, "'inadequate treatment is being rendered; it appears that
treatment is needed by a specialist in a particular field and is
not being provided; [or] no progress [is] being made in
improvement of the employee's health condition without any
adequate explanation.'" Allen & Rocks, Inc. v. Briggs, 28 Va.
App. 662, 675, 508 S.E.2d 335, 341 (1998) (quoting Powers, 68
O.I.C. at 211).
Here, the commission found that Dr. Vokac's treatment was
"more than adequate . . . relative to pharmacological treatment
and evaluation based on objective diagnostic studies" but that
it was inadequate in terms of "palliative pain relief and joint
function." After Dr. Vokac opined on October 4, 2000 that he
did not have "anything else . . . to offer [claimant]" from an
orthopedic standpoint, claimant obtained additional medical
treatment on her own. The record supports a finding that the
additional treatment both improved claimant's range of motion
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and alleviated some of her pain. As previously discussed,
treatment for palliative care qualifies as "necessary medical
treatment" under Code § 65.2-603 where, as here, the commission
finds credible a claimant's complaints of continuing pain.
Thus, the record supports the commission's finding that
Dr. Vokac's treatment was inadequate in terms of "palliative
pain relief and joint function." The record further supports
the commission's decision requiring employer to furnish claimant
with a panel of "physiatrists and/or pain management
specialists" from which to choose a new treating physician.
For these reasons, we hold the evidence supports the
commission's decision ordering employer (1) to pay for
chiropractic treatment rendered to claimant by Elliot Eisenberg
and (2) to provide claimant with a panel of "physiatrists and/or
pain management specialists" from which to choose a new treating
physician. Therefore, we affirm the commission's decision.
Affirmed.
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