COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
MEADOW GREEN MINUTE MARKET, INC.
AND
VIRGINIA FARM BUREAU FIRE & CASUALTY INSURANCE
MEMORANDUM OPINION *
v. Record No. 0098-98-3 PER CURIAM
MAY 26, 1998
REBECCA B. BOWLES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cathie W. Howard; Pierce & Howard, on
brief), for appellants.
(Rhonda L. Overstreet; Lumsden, Overstreet &
Hansen, on brief), for appellee.
Meadow Green Minute Market, Inc. and its insurer
(hereinafter referred to as "employer") contend that the Workers'
Compensation Commission ("commission") erred in granting the
application of Rebecca B. Bowles ("claimant") requesting that
employer provide her with a new panel of physicians. 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.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In granting claimant's application, the commission found as
follows:
In this case, the treating neurosurgeon has
declined to make a referral to a physician
who might address the claimant's ongoing pain
complaints. Dr. [Edgar N.] Weaver[, Jr.] has
instead determined that the claimant needs no
further treatment despite the pain and
presence of significant scar tissue.
Although the claimant may not have need of
further neurosurgical intervention, we find
that Dr. [John] Wilson's suggestion of a pain
clinic is a reasonable approach which Dr.
Weaver evidently finds unnecessary. In view
of the fact that Dr. Weaver has no plan of
treatment or referral for the claimant's
post-operative pain complaints, we find that
she is entitled to a new panel of physicians.
Whether a treating physician has released or abandoned his
patient generally is determined by the express intent of the
physician. In some cases, the total circumstances must be
analyzed in order to determine whether discharge, release, or
abandonment of the patient was intended. This determination is a
factual one which must be proved by clear and convincing
evidence. See Jensen Press v. Ale, 1 Va. App. 153, 157, 336
S.E.2d 522, 524 (1985).
Claimant's testimony and the medical records provide clear,
convincing and credible evidence to support the commission's
findings that Dr. Weaver refused to provide further treatment to
claimant or to refer her to another physician although she
continued to complain of post-operative pain. Where, as here,
the commission's factual findings are supported by credible
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evidence they will not be disturbed on appeal. Based upon these
findings, the commission did not err in granting claimant's
request for a new panel of physicians.
For these reasons, we affirm the commission's decision.
Affirmed.
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