COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
MARY IMMACULATE HOSPITAL AND
RECIPROCAL OF AMERICA
MEMORANDUM OPINION*
v. Record No. 1106-01-2 PER CURIAM
SEPTEMBER 4, 2001
BRENDA H. NASH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Karen A. Gould; Angela C. Fleming; Crews &
Hancock, P.L.C., on briefs), for appellants.
(Byron A. Adams, on brief), for appellee.
Mary Immaculate Hospital and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in (1) finding that Brenda H. Nash's (claimant)
refusal to attend a January 14, 2000 appointment with
Dr. Mark B. Kerner, an orthopedist, did not constitute a refusal
of necessary medical treatment; and (2) failing to rule that
claimant's refusal to attend the appointment with Dr. Kerner was
unjustified. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
In denying employer's application, the commission found as
follows:
[I]t was the claimant, not her physiatrist,
Dr. [Thomas] Moran, who requested an
orthopedic consultation. Despite the fact
that he saw "little chance of any surgical
options," Dr. Moran reluctantly referred her
to Dr. Kerner. The claimant decided not to
see Dr. Kerner, and her primary care
physician supported her wish not to drive
the distance required. The claimant's calls
to the carrier's representative, Ms.
Moorehead, were not returned. Dr. Kerner
reviewed the claimant's records and agreed
that it was "highly unlikely" that he had
anything to offer the claimant. We cannot
find that failure to follow up with an
orthopedic consultation scheduled "at her
insistence," which all agree would be of no
value, constitutes a refusal of treatment.
Code § 65.2-603(A)(1) provides that "[a]s 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 by the injured employee from a panel of at least three
physicians selected by the employer and such other necessary
medical attention." Moreover,
[t]he unjustified refusal of the employee to
accept such medical service . . . when
provided by the employer shall bar the
employee from further compensation until
such refusal ceases and no compensation
shall at any time be paid for the period of
suspension unless, in the opinion of the
Commission, the circumstances justified the
refusal.
Code § 65.2-603(B).
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"Whether the employer is responsible for medical expenses
pursuant to [Code § 65.2-603, formerly] Code § 65.1-88 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). "Whether medical
attention is necessary is a matter for the attending physician
or the . . . Commission to determine, not the employer." Id. at
200, 336 S.E.2d at 906. "The policy behind suspension of
benefits during the period of a claimant's refusal of medical
services is to compel the employee to take all reasonable steps
to reduce the liability of the employer by seeking prompt
medical attention where it is indicated." Davis v. Brown &
Williamson Tobacco Co., 3 Va. App. 123, 128, 348 S.E.2d 420, 423
(1986).
In light of Dr. Moran's opinion that he saw "little chance
of any surgical options," his reluctance to refer claimant for
an orthopedic consultation, and Dr. Kerner's statement that it
was "highly unlikely" that he had anything to offer claimant,
the commission concluded that the "consultation" appointment,
made at claimant's insistence, did not constitute necessary
medical treatment. Based upon this record and the policy
underlying the suspension of benefits during an unjustified
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refusal of necessary medical treatment, we find no basis upon
which to disturb the commission's finding.
Because we affirm the commission's finding that the
appointment with Dr. Kerner did not constitute necessary medical
treatment, we need not address the second question presented by
employer.
For these reasons, we affirm the commission's decision.
Affirmed.
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