Davis v. Brown & Williamson Tobacco Co., 0122-86-2

• Decision Date: 16 September 1986
• Docket Number: No. 0122-86-2,0122-86-2
• Citation: 3 Va.App. 123,348 S.E.2d 420
• Court: Virginia Court of Appeals
• Parties: Russell W. DAVIS, v. BROWN & WILLIAMSON TOBACCO CO., et al. Record

Page 420

348 S.E.2d 420

3 Va.App. 123

Russell W. DAVIS, v. BROWN & WILLIAMSON TOBACCO CO., et al.

Record No. 0122-86-2.

Court of Appeals of Virginia.

Sept. 16, 1986.

B. Mayes Marks, Jr. (John C. Shea, Marks, Stokes & Harrison, Hopewell, on brief), for appellant.

Nathaniel S. Newman (Thompson, Smithers, Newman & Wade, Richmond, on brief), for appellee.

Panel: KOONTZ, C.J., and COLEMAN and HODGES, JJ.

COLEMAN, Judge.

The narrow issue presented in this appeal from the Industrial Commission's denial of an award of compensation for work incapacity is whether the claimant's cancellation of an appointment with his treating physician constituted a refusal of medical services under Code § 65.1-88. We hold that it did not and reverse.

Claimant suffered a back and groin injury at work on June 4, 1985. He immediately reported his injury at the nurses' station, but, because he felt that he would improve without treatment, he declined to see the company doctor. However, by June 17, 1985, claimant's back pain had become so unbearable that he sought out Dr. David Haines, an orthopedic specialist, for treatment. He immediately reported his visit with Dr. Haines to the employer. The employer declined to offer claimant a panel of physicians because it considered the injury not to be work related. Dr. Haines saw claimant on four occasions. After taking x-rays of claimant's lower back area, he prescribed medication and physical therapy. On August 5, 1985, claimant, feeling that he was not improving under Dr. Haines' care, went to another orthopedic specialist, Dr. John Ayres. He called Dr. Haines' office the same day to cancel an appointment which had been scheduled for August 8, but advised that he would reschedule the appointment. Claimant has not returned to Dr. Haines and has remained out of work since seeing Dr. Ayres.

On August 9, 1985, claimant filed an application for workers' compensation benefits with the Industrial Commission. Although the deputy commissioner awarded benefits to claimant, the full Commission reversed, finding that, while the injury had arisen out of and in the course of his employment, claimant had unjustifiably refused medical treatment in cancelling his appointment with Dr. Haines.

The parties have no dispute with the Commission's findings that the injury was compensable and that once claimant began treatment under Dr. Haines, he became claimant's recognized treating physician within the meaning of Code § 65.1-88. An attending physician selected by an employee becomes the treating physician if the employer fails or refuses to provide a panel of physicians. See Chesapeake Masonry Corp. v. Wiggington, 229 Va. 227, 231, 327 S.E.2d 121, 123 (1985); Breckenridge v. Marval Poultry Co., 228 Va. 191, 194, 319 S.E.2d 769, 770-71 (1984). In Breckenridge, the Court recognized and endorsed the Commission rule that:

[I]f the employer fails to offer the injured employee a panel of physicians, the employee is at liberty to select a physician of his own, however, once said selection is made the employee is not at liberty to change therefrom unless referred by said physician, confronted with an emergency, or given permission by the employer and/or its insurer or this Commission.

228 Va. at 194, 319 S.E.2d at 770-71.

The Commission found that "[s]ince the claimant cancelled his appointment with Dr. Haines and immediately placed himself under the care of Dr. Ayres without permission of the employer, carrier or Industrial Commission," he unjustifiably refused medical treatment. We disagree. The Commission's holding erroneously expands the notion of what constitutes "unjustified refusal" of medical treatment under Code § 65.1-88, ¹ by equating unauthorized medical treatment with unjustified refusal of treatment. The intent of that statute "is to penalize employees who unjustifiably refuse reasonable and necessary medical treatment," Chesapeake Masonry, 229 Va. at 232, 327 S.E.2d at 124, from their attending physician, whether selected from a panel or chosen independently by the employee. The duty of the employee, once he obtains an attending physician, is "to accept such necessary medical attention as the nature of the accident may require." Stump v. Norfolk Shipbuilding & Dry Dock Corp., 187 Va. 932, 938, 48 S.E.2d 209, 202 (1948). If the employee refuses such medical services, and the refusal is without just cause, Code § 65.1-88 bars the employee from receiving compensation or medical benefits until the refusal is cured.

It is not disputed that claimant changed physicians without permission of the employer or the Commission. An unauthorized change in physicians, however, is not necessarily equivalent to a refusal of medical services under Code § 65.1-88. ² In order to invoke the suspension of benefits provision of Code § 65.1-88, there must be evidence of a "refusal of the employee to accept ... medical service ... when provided by the employer."

The cases in which the Commission and the appellate courts of Virginia have made or upheld determinations that an employee was not entitled to compensation involve a clear refusal to undergo medical treatment or to participate in the plan of treatment recommended by the treating physician. In Stump, for example, the employee refused to return to his treating physician due to his notion that he could take care of himself. 187 Va. at 938, 48 S.E.2d at 202. In Johnson v. Arlington Lambert, 59 O.I.C. 159 (1980), and Horn v. Centennial Contractors, Inc., 57 O.I.C. 171 (1976), the employees refused to accept the recommended treatment and have a myelogram performed to determine the extent of their back injuries. In Chesapeake Masonry, the employee ignored the suggestions of his attending physician that he undergo surgery, and instead, refused any further treatments by a medical doctor and placed himself in the care of a chiropractor in direct defiance of the treating physician's instructions. Chesapeake Masonry, upon which the Commission relied heavily for its holding in this case, is readily distinguishable on its facts. Wiggington clearly refused competent orthopedic care, and was clearly unjustified in his refusal. Furthermore, he did not demonstrate that he was seeking better care.

Claimant in the present case never refused treatment as did the employees in the aforementioned cases. To the contrary, he did everything Dr. Haines instructed him to do, which included taking medication and wearing a lumbar corset. On claimant's fourth visit to Dr. Haines on July 25, the...