Jalloh v. S.W. Rodgers & Arch Ins. Co.
| Docket Number | Record No. 0920-22-4 |
| Decision Date | 04 April 2023 |
| Citation | 77 Va.App. 195,884 S.E.2d 845 |
| Parties | Abu JALLOH v. S.W. RODGERS and Arch Insurance Company |
| Court | Virginia Court of Appeals |
Andrew S. Kasmer, for appellant.
Kathryn Lea Harman, Vienna (Semmes, Bowen & Semmes, on brief), for appellees.
Present: Chief Judge Decker, Judges AtLee and Friedman
OPINION BY CHIEF JUDGE MARLA GRAFF DECKER
Abu Jalloh (the claimant) appeals a decision of the Workers’ Compensation Commission. He suffered a compensable injury while working for S.W. Rodgers,1 and the Commission found that his treating physician of choice was not authorized under the Workers’ Compensation Act. It reasoned that the employer satisfied its obligation under Code § 65.2-603 by making a good faith effort to provide a panel of physicians to the claimant and, therefore, that he was not authorized to choose his own physician. On appeal, the claimant first argues that the Commission erred in concluding that an employer meets its statutory obligation to provide a panel if it makes a good faith effort to do so. Second, he challenges the Commission's finding that he was not totally disabled after October 27, 2021. Based on the statutory language, we agree with the claimant's first assignment of error. As a result of this conclusion, we reverse the Commission's decision and remand the case. On remand, the Commission should revisit its evaluation of the medical evidence of the claimant's period of disability.
On June 10, 2021, the claimant fell off a ladder and suffered back, neck, and shoulder injuries. He promptly notified his supervisor and went home. He did not return to work, and the employer treated his continued absence as a resignation.
On June 14, 2021, the company safety officer, Wayne Haight, spoke with the claimant by telephone. During that conversation, Haight explained that he was trying to get the claimant to seek medical attention. The claimant stated that he planned to see "his own doctor." Haight followed up by visiting the claimant's home with two copies of a panel list of employer-approved physicians. The claimant was not home, so Haight spoke with the claimant's wife. The wife then called the claimant on the telephone, and Haight spoke to him. Haight told the claimant he was at the home in order to provide him with a panel of physicians so that he could choose one from which to seek medical treatment, as required by Code § 65.2-603. The claimant angrily demanded that Haight leave. Haight offered to meet him in order to provide the list of physicians, but the claimant declined. Haight left without leaving a copy of the panel list. It is undisputed that the claimant never received the document providing a panel of physicians.3
The claimant saw his orthopedic surgeon, Dr. Mehrdad Malek, on June 15, 2021, and continued in his care. Malek diagnosed him with various sprains, strains, and a contusion. In order to address these injuries, Dr. Malek referred him to physical therapy and prescribed medication. In addition, Malek ordered the claimant to abstain from work until November 30, 2021. At the employer's request, the claimant also saw Dr. Paymaun Lotfi. Dr. Lotfi evaluated the claimant in October 2021 and similarly assessed him with various sprains to the neck
, back, and shoulder. Unlike Malek, however, Lotfi concluded that the claimant could return to medium-duty work.
The claimant sought benefits for his injuries under the Workers’ Compensation Act. At the hearing before the deputy commissioner, the employer stipulated that the claimant had suffered compensable injuries. However, the employer defended on two grounds. First, the claimant's treatment was unauthorized because he went to his own physician. Second, he was not disabled to the extent alleged. The deputy commissioner decided that the employer was responsible for Dr. Malek's treatment because it failed to provide the claimant with a panel of physicians despite "ample opportunity" to do so "within a reasonable time after the accident." He also held that based on Malek's opinion as the claimant's treating physician, the claimant was entitled to continuing temporary total disability benefits beginning June 15, 2021.
The employer filed a request for review by the Commission. In a split decision, the Commission reversed the decision of the deputy commissioner in part and affirmed it in part.4 In doing so, the Commission held that "the employer made a good faith effort to present the claimant with a [physicians] panel, which the claimant effectively refused by engaging in a course of conduct designed to frustrate the employer's effort to provide a panel." The Commission concluded that therefore the employer was not responsible for the unauthorized treatment provided by Dr. Malek. Adopting Dr. Lotfi's medical opinion, it also held that the claimant was not entitled to temporary total disability benefits after October 27, 2021.
The claimant argues that the Commission erred by finding that the employer met its statutory obligation to offer him a panel of physicians, improperly applying a good faith exception to that requirement. He also argues the Commission erred by denying his claim for continuing wage loss after October 27, 2021. As the appellant in this case, the claimant bears the burden of showing that the Commission committed reversible error. See Burke v. Catawba Hosp. , 59 Va. App. 828, 838, 722 S.E.2d 684 (2012).
The claimant contends that the employer failed to provide him a panel of physicians from which to choose a doctor for his medical care in compliance with Code § 65.2-603. Based on this failure, the claimant argues that the Act permitted him to receive covered treatment from his own physician. The employer believes the Commission did not err in applying a good faith standard because to hold otherwise would encourage claimants to evade contact from employers.
For the purposes of workers’ compensation, there are specific requirements in place. When an employer must furnish medical care for a compensable injury suffered by an employee, it is required to provide a "panel of at least three physicians selected by the employer" from which the employee can choose the treating physician. Code § 65.2-603(A)(1) (); (B) ( that an employee's "unjustified refusal" to accept "medical service ... when provided by the employer shall bar the employee from further compensation"); (F) (referencing "the panel provided"). The employer must demonstrate that it has fulfilled this obligation. Goodyear Tire & Rubber Co. v. Pierce (Goodyear II ), 9 Va. App. 120, 129, 384 S.E.2d 333 (1989). "[I]f the employer fails or refuses to provide a panel of physicians," the injured employee can select his own treating physician. Southland v. Welch , 33 Va. App. 633, 637-38, 536 S.E.2d 443 (2000) (quoting Davis v. Brown & Williamson Tobacco Co. , 3 Va. App. 123, 126, 348 S.E.2d 420 (1986) ).
Here, there is no question that the employer did not provide a list of physicians to the claimant. There is no evidence that the employer sent it by regular mail or email to the claimant or his attorney, nor is there evidence that Haight left it at the claimant's house when he was there. The Commission did not make a factual finding that a panel of physicians was provided.5 Instead, it found that the employer "attempted ... to provide" the claimant with a panel.
The Commission determined that because the employer made a "good faith effort" to provide a panel to the claimant, it met the requirement of Code § 65.2-603(A). The issue for resolution on appeal is whether a good faith effort is sufficient to fulfill the statutory obligation to provide a panel of physicians to an injured employee.
Interpreting a statute is a question of law that this Court reviews de novo. See Paramont Coal Co. Va. v. McCoy , 69 Va. App. 343, 352, 819 S.E.2d 831 (2018). Appellate courts "assume that the General Assembly chose, with care, the words it used in enacting the statute" at issue. See City of Richmond v. Va. Elec. & Power Co. , 292 Va. 70, 75, 787 S.E.2d 161 (2016) (quoting Kiser v. A.W. Chesterton Co. , 285 Va. 12, 19 n.2, 736 S.E.2d 910 (2013) ). For this reason, courts are bound by the plain meaning of a statute unless it "would lead to an absurd result." Jones v. Commonwealth , 295 Va. 497, 502, 814 S.E.2d 192 (2018) (quoting Commonwealth v. Barker , 275 Va. 529, 536, 659 S.E.2d 502 (2008) ). "Consistent with this standard, ‘[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction.’ " Banks v. Commonwealth , 67 Va. App. 273, 282, 795 S.E.2d 908 (2017) (quoting Meeks v. Commonwealth , 274 Va. 798, 802, 651 S.E.2d 637 (2007) (alteration in original)). And, "[a] court may not ‘add to the words’ of a statute." Berglund Chevrolet, Inc. v. Va. Dep't of Motor Vehicles , 71 Va. App. 747, 753, 840 S.E.2d 19 (2020) (quoting Baker v. Commonwealth , 278 Va. 656, 660, 685 S.E.2d 661 (2009) ). Further, with regard to the statutory scheme at issue, a reviewing court "construe[s] the Workers’ Compensation Act liberally for the benefit of employees to effectuate its remedial purpose of making injured workers whole." Vital Link, Inc. v. Hope , 69 Va. App. 43, 53, 814 S.E.2d 537 (2018) (quoting Advance Auto & Indem. Ins. Co. of N. Am. v. Craft , 63 Va. App. 502, 514, 759 S.E.2d 17 (2014) ).
In order to fulfill its obligation under Code § 65.2-603 to provide a panel to a claimant, an employer must meet certain objective standards. See, e.g. , Peninsula Transp. Dist. Comm'n v. Gibbs , 228 Va. 614, 618, 324 S.E.2d 662 (1985) (); Turner Gilbane JV v. Guzman , 59 Va. App. 128, 134,...
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