COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
COMMUNITY MEMORIAL HEALTH CENTER AND
RECIPROCAL OF AMERICA
MEMORANDUM OPINION*
v. Record No. 0325-01-2 PER CURIAM
JULY 3, 2001
KAREN MARIE WILSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Karen A. Gould; Angela C. Fleming; Crews &
Hancock, P.L.C., on briefs), for appellants.
(Ruth E. Nathanson; Maloney, Parks, Clarke &
Nathanson, P.C., on brief), for appellee.
Community Memorial Health Center and its insurer
(hereinafter referred to as "employer") contend that the
Workers' Compensation Commission erred in finding that (1) Karen
Marie Wilson (claimant) proved that her psychological treatment
with Helaine B. Meadows, Licensed Clinical Social Worker, was
causally related to claimant's compensable January 16, 1996
injury by accident; (2) claimant did not unjustifiably refuse to
attend or continue an independent psychological examination with
Dr. James B. Wade on August 10, 1999; and (3) claimant did not
unjustifiably refuse employer's offers of selective employment.
Upon reviewing the record and the briefs of the parties, we
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
I. Causation: Psychological Treatment
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "The
actual determination of causation is a factual finding that will
not be disturbed on appeal if there is credible evidence to
support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989). "Questions raised by
conflicting medical opinions must be decided by the commission."
Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989).
In ruling that claimant proved by a preponderance of the
evidence that the psychological treatment rendered by Meadows
was causally related to claimant's 1996 compensable injury by
accident, the commission found as follows:
We accept the opinions of Dr. [Ronald
O.] Forbes[, treating psychiatrist,] and
Meadows, which explained that the 1996
accident exacerbated or aggravated the
claimant's preexisting psychological
problems. It is well settled that the
employer takes the employee as it finds her,
with all of her preexisting disabilities and
infirmities, and it is responsible for the
effects of an accident that aggravates or
exacerbates a preexisting condition, even if
it is a preexisting psychological condition
otherwise considered an ordinary disease of
life. Therefore, the employer is
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responsible for the claimant's psychological
care to the extent it involved treatment for
the effects of the work accident.
While we recognize that the claimant
was already under medication by her family
physician for treatment of depression and
"panic attacks," the undisputed evidence is
that the claimant had never before missed
time for work, nor undergone treatment as
extensive, before her compensable accident
in 1996. The claimant's treating
psychiatrist and her counselor of over two
years, both agree that the claimant's
preexisting condition was exacerbated by the
injury and resulting medical procedures, to
the point of dysfunction. The claimant's
primary treating physician, Dr. [Charles H.]
Bonner, deferred to Dr. Forbes' medical
expertise in determining the cause of the
condition and the claimant's need for
treatment.
(Citation omitted.)
"Medical evidence is not necessarily conclusive, but 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). In its role as fact finder, the
commission was entitled to weigh the medical evidence, to accept
the opinions of the treating psychiatrist, Dr. Forbes, and the
treating counselor, Meadows, and to reject any contrary medical
opinions. The opinions of Dr. Forbes and Meadows constitute
credible evidence to support the commission's decision. "The
fact that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
commission's decision." Wagner Enters., Inc. v. Brooks, 12 Va.
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App. 890, 894, 407 S.E.2d 32, 35 (1991). Moreover, "[i]n
determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of
the witnesses." Id.
II. Independent Psychological Examination
If an employee, without justification,
refuses to submit to or in some way
obstructs a medical examination to which an
employer is entitled, compensation benefits
will be suspended during the continuation of
the refusal.
Justification is a factual
determination made upon an objective view of
all circumstances as they reasonably
appeared to the claimant. The commission's
factual findings on this issue are
conclusive and binding on this Court if
supported by credible evidence.
R.G. Moore, 10 Va. App. at 213, 390 S.E.2d at 789 (citation
omitted).
The facts support the commission's finding that the
claimant was justified in refusing to continue with Dr. Wade's
August 10, 1999 examination because "she felt that she was in an
adversarial situation when being questioned by the two [male]
examiners[, Dr. Wade and his assistant,] in [the] areas [of her
failed marriages and family life], and became extremely
emotional and distressed." In light of claimant's unstable
psychological condition at the time of the examination and her
perception of the situation, the commission could reasonably
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infer that claimant was justified in refusing to continue the
examination on August 10, 1999. Credible evidence, including
the testimony of claimant and Franklin Wells, supports the
commission's finding.
Because credible evidence supports the commission's finding
that claimant was justified in refusing to continue Dr. Wade's
August 10, 1999 examination, we need not address the issue of
whether claimant cured such refusal.
III. Refusal Selective Employment
At the time employer offered selective employment to
claimant, Dr. Forbes and Meadows had already opined that
claimant remained totally disabled from work due to her
psychological condition, which was causally related to her
compensable 1996 injury by accident.
We have found that credible evidence supports the
commission's finding that claimant's psychological condition was
causally related to her compensable accident, and that the
commission, as fact finder, was entitled to accept the opinions
of Dr. Forbes and Meadows. Accordingly, credible evidence
supports the commission's finding that because claimant remained
totally disabled due to conditions causally related to the
compensable 1996 accident, she did not unjustifiably refuse
selective employment.
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For these reasons, we affirm the commission's decision.
Affirmed.
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