K & K Repairs and Const. v. Endicott
| Decision Date | 22 November 2005 |
| Docket Number | Record No. 0084-05-3. |
| Citation | 47 Va. App. 1,622 S.E.2d 227 |
| Court | Virginia Supreme Court |
| Parties | K & K REPAIRS AND CONSTRUCTION, INC. and Hartford Underwriters Insurance Company v. Jackie Allen ENDICOTT. |
Ramesh Murthy (Penn, Stuart & Eskridge, on brief), Abingdon, for appellants.
D. Allison Mullins (Lee & Phipps, P.C., Clintwood, on brief), for appellee.
Present: FITZPATRICK, C.J., and BENTON and BUMGARDNER, JJ.
The issue raised by this appeal is whether the Workers' Compensation Commission erred in finding that Jackie A. Endicott was entitled to a change in his treating physician. We affirm the commission's decision.
The record in this case is extensive, but the facts are essentially undisputed. The evidence established that Jackie A. Endicott sustained compensable injuries to his neck, lower back, right arm, and right shoulder on November 11, 1997, arising out of and during the course of his employment with K & K Repairs and Construction, Inc. The commission approved the parties' Memorandum of Agreement and entered an award for temporary total benefits to be paid weekly during Endicott's incapacity and for medical expenses as long as necessary. Endicott returned to work June 22, 1998, but moved to Florida in early 2000. Endicott and K & K Repairs have had a continuing dispute concerning a treating physician for Endicott following his move to Florida.
In 2000, Endicott filed claims for benefits alleging, in part, that K & K Repairs had failed to provide him with panel of physicians in Florida and had failed to pay medical benefits. After an exchange of letters, Endicott received a panel of physicians on July 12, 2000 and selected a physician from the panel. However, the physician he selected was unwilling to accept workers' compensation patients. On August 25, 2000, K & K Repairs agreed to provide Endicott with another panel. The record indicates K & K Repairs had "difficult[y] finding physicians in Florida, willing to take on a Virginia workers' compensation patient."
Before Endicott received the next listing of panel physicians, he required medical treatment and sought it from Dr. Mark Rubino, a neurologist. K & K Repairs refused to authorize Endicott to treat with Dr. Rubino and ordered him to select from the panel previously offered. The following day, Endicott went to a hospital emergency room where he received treatment from Dr. Jeffrey M. Rosenfield. Dr. Rosenfield's report indicates that "Dr. Rubino was contacted as the patient's neurologist" and that Endicott was admitted to the hospital at Dr. Rubino's recommendation. Dr. Rubino treated Endicott in the hospital and, three days later, referred Endicott to Dr. Michael B. Lusk, a neurosurgeon. Dr. Lusk examined Endicott, recommended that he be discharged, and arranged to continue treatment with him as an outpatient.
Endicott received a second panel of physicians in October 2000. This panel included five doctors including Dr. Lusk and Dr. Mark Gerber. Endicott selected Dr. Lusk, from whom he had earlier received treatment. After Dr. Lusk demanded a $650 fee, K & K Repairs refused to honor Endicott's selection and promised to provide Endicott with "another physician on the panel from which he can choose." Eventually, the commission resolved the dispute between the parties concerning Endicott's treating physician. A deputy commissioner ordered the parties' attorneys to agree on a physician and to notify him of their agreement. Finding that the parties agreed that Dr. Gerber would be Endicott's treating physician and that Dr. Lusk would be paid for his prior services, the deputy commissioner ordered that result. On a request for review by Endicott, the commission upheld the deputy commissioner's findings and decision.
Endicott submitted other claims that were denied by the deputy commissioner. One of those claims was for payment of fees for services rendered by Dr. Lusk after April 2000. In light of the commission's opinion, the deputy commissioner ruled that K & K Repairs was not responsible for treatment rendered by Dr. Lusk after that date because Dr. Lusk was not the authorized treating physician.
On June 6, 2003, Endicott filed this current claim for benefits, alleging that K & K Repairs failed to pay his medical bills. Endicott later amended his claim to include a request that Dr. Lusk be named as his treating physician based on a referral letter from Dr. Gerber, the authorized treating physician. In his letter, Dr. Gerber notes that he and Dr. Lusk are partners in the same medical practice group and that both are neurosurgeons. Dr. Gerber also notes in his letter that he has not treated Endicott but reports as follows:
I have, however, reviewed the medical records of Dr. Mark Rubino and Dr. Michael Lusk regarding [Endicott's] care secondary to his work-related injury. Dr. Rubino is a neurologist, who would normally see a patient before I would, as I am a neurosurgeon. It is customary in our practice to have a neurologist evaluate the patient first and only refer surgery cases to the surgeon.
However, after a brief review of Dr. Rubino's records, referral to Dr. Lusk, my partner, was appropriate, as I was not available. He did have a cervical injury with myelopathy necessitating decompression. He has had chronic pain as a consequence of his injury, as well as a seizure disorder which has been under the care of Dr. Rubino.
Therefore, I do feel the treatment provided by Dr. Rubino and Dr. Lusk has been reasonable, necessary, and related to his work injury. I refer Mr. Endicott to Dr. Rubino and Dr. Lusk for continuing treatment of his work-related injury.
The letterhead on his stationery shows that Dr. Rubino is one of seven neurologists in that same medical practice group.
The deputy commissioner denied Endicott's request for a change in treating physicians. He ruled that the letter from...
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