COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia
WELLMORE COAL CORPORATION AND
UNITED AFFILIATES CORPORATION
MEMORANDUM OPINION * BY
v. Record No. 1175-97-3 JUDGE NELSON T. OVERTON
JANUARY 13, 1998
TOMMY M. WILLIAMSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S.T. Mullins (Street, Street, Street, Scott &
Bowman, on brief), for appellants.
Gregory E. Camden (Rutter & Montagna, on
brief), for appellee.
Wellmore Coal Corporation and United Affiliates Corporation
(employer) appeal a ruling of the Virginia Workers' Compensation
Commission finding that Tommy Williamson (claimant) has suffered
a change in condition and, therefore, is entitled to a
reinstatement of benefits and payment of medical expenses.
Employer contends on appeal that there was insufficient evidence
to prove that claimant has suffered a change of condition
attributable to his industrial accident or that medical expenses
flowing from this change are the responsibly of employer. In the
alternative, employer asks that we remand the case to the
commission for a finding of claimant's residual work capacity.
Because we find that there is sufficient evidence to support the
commission's decision, we affirm.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, we recite only those facts necessary for
disposition of this appeal.
"We will not disturb the factual determination of causation
if credible evidence supports the finding, even if the record
contains evidence to the contrary." Food Distributors v. Estate
of Hall, 24 Va. App. 692, 704, 485 S.E.2d 155, 161 (1997) (citing
Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d
814, 817 (1989)). When there is conflicting medical evidence,
"the trier of fact is left free to adopt that view which is most
consistent with reason and justice." Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1985).
So viewed, the evidence firmly established that claimant
suffered a change in his condition and the medical treatment
received by him was causally related to this change.
The commission was faced with conflicting medical evidence
on the issue of whether claimant's continued back pain was
related to his industrial accident of October 5, 1993. Reports
from seven different doctors were contained in the record, most
coming to widely disparate conclusions. The commission chose to
believe the report of Dr. Steven Poletti, claimant's last
treating physician and the only one to have discovered the cause
of claimant's pain. It was Dr. Poletti's opinion that claimant
suffered from "disk disruption and herniation" and that the
2
injury was at least two years old, dating back to the time of
claimant's work injury. While other doctors disagreed, the
commission specifically chose to adopt Dr. Poletti's opinion and
discount the others. Because the opinion of a board certified
orthopedist as to the cause and treatment of back pain
constitutes sufficient evidence to support a finding of
causation, we may not disturb it on appeal. See Code
§ 65.2-706(A).
Once we have determined that the treatment was medically
necessary, the question becomes whether employer must pay for it.
Under Code § 65.2-603(C) the commission may order an employer to
pay for "a physician other than that provided by the employer" if
there is an emergency, employer failed to provide a doctor or
"for other good reasons." We stated in Shenandoah Products, Inc.
v. Whitlock, 15 Va. App. 207, 213-14, 421 S.E.2d 483, 486 (1992),
that the "other good reasons" exception is applicable if a
claimant
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.
Here, claimant's predicament is remarkably similar to that in
Shenandoah. As we have previously stated, Dr. Poletti and his
associate, Dr. Warren, were the first ones to diagnose and treat
3
claimant's condition. None of employer's doctors had done so.
Therefore, the treatment was both necessary and different from
that provided by employer. Further, claimant acted in good
faith. Dr. Nadar, claimant's previously unsuccessful treating
physician, had recommended that claimant seek another doctor
closer to his home in South Carolina. There is nothing else in
the record to indicate that claimant had any other ulterior
motive to his change of physicians other than to seek effective
treatment for his injury. Under these circumstances, we cannot
say that the commission was wrong when it found employer
responsible for medical expenses under Code § 65.2-603(C).
Employer's final contention is that claimant failed to
market his residual work capacity. For an injured employee to
receive benefits, he must make an effort to market his remaining
capabilities. See Virginia Wayside Furniture, Inc. v. Burnette,
17 Va. App. 74, 78, 435 S.E.2d 156, 159 (1993). However, the
record shows that the issue, while raised at the deputy
commissioner's hearing, was not raised to the full commission and
no evidence was presented on it by either party. Accordingly,
the commission did not err by not addressing the question.
Because we agree with the commission on the issue of
employer liability, we affirm its decision.
Affirmed.
4