MARRIOTT INTERN., INC. v. Carter

• Decision Date: 09 January 2001
• Docket Number: Record No. 0680-00-1.
• Citation: 539 S.E.2d 738,34 Va. App. 209
• Parties: MARRIOTT INTERNATIONAL, INC. and Continental Casualty Company v. Robert D. CARTER, III.
• Court: Virginia Court of Appeals

539 S.E.2d 738

34 Va. App. 209

MARRIOTT INTERNATIONAL, INC. and Continental Casualty Company v. Robert D. CARTER, III.

Record No. 0680-00-1.

Court of Appeals of Virginia, Chesapeake.

January 9, 2001.

Roger L. Williams (John T. Cornett, Jr.; Williams, Lynch & Whitt, on brief), Richmond, for appellants.

Byron A. Adams, Newport News, for appellee.

Present: BENTON, ELDER and FRANK, JJ.

BENTON, Judge.

Marriott International, Inc., appeals from the Virginia Workers' Compensation Commission's award of temporary total disability benefits and medical benefits to Robert D. Carter, III. Marriott contends that Carter's disability was unrelated to his April 4, 1997 injury by accident and that the medical treatment provided by physicians other than Carter's treating physician was unauthorized. For the reasons that follow, we, affirm the commission's decision.

I.

On appeal, we review the evidence in the light most favorable to the party prevailing below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990). So viewed, the evidence at the evidentiary hearing proved that on April 4, 1997, Carter sustained an injury to his left knee while he was on his knees cleaning a floor. Carter testified that when he leaned back to grab a bucket, he felt a sharp pain in his knee. Marriott, his employer, denied responsibility for Carter's claim.

Carter selected as his treating physician Dr. Thomas Stiles, an orthopedic surgeon, who was listed in his employee handbook. On June 5, 1997, Dr. Stiles performed arthroscopic surgery on Carter's left knee, shaving some chondromalacia from the patella and removing a small flap tear on Carter's lateral meniscus. Dr. Stiles also shaved the fat pad on Carter's knee. Despite this surgical intervention, Carter continued to have pain in his knee. In August 1997, Dr. Stiles noted that Carter had a "rather marked weakness of his left quadriceps." Nevertheless, following a September 22, 1997 examination of Carter's knee, Dr. Stiles released Carter to return to work.

On October 2, 1997, after a fall he attributed to weakness in his knee, Carter went to a hospital emergency room, where he was treated by Dr. Thomas Camp. Dr. Camp's assessment of Carter's condition was that Carter had sustained an "[a]cute exacerbation of a chronic left knee disorder with effusion." Dr. Camp provided Carter with a knee immobilizer and crutches and directed him to follow up with his physician.

Carter testified that he had no income and no other source for paying his medical bills because Marriott had not paid any of his medical bills. Carter, therefore, obtained treatment through his wife's health insurance plan. Using her plan, he received treatment from Dr. Virginia Wells, the designated primary care physician for his wife's health insurance plan. After examining Carter regarding his knee injury, Dr. Wells referred Carter to Dr. Charles Wilhelm, an orthopedist.

Dr. Wilhelm viewed the videotape of the arthroscopic surgery performed by Dr. Stiles and opined that the chondromalacia treated by Dr. Stiles' surgery was probably caused by Carter's April 4, 1997 injury. Dr. Wilhelm further opined that he did not see any reason why Carter's accident could not have caused the chondromalacia. He explained that he was "not aware that there is any other contributing cause." Dr. Wilhelm testified that Carter's complaints of pain seemed out of proportion to the orthopedic manifestations of his injury; however, he further testified that "some people who have terrible softening and mechanical destruction of the joint ... don't appear to have a lot of pain and then there are other people who don't have much destruction but who appear to have a lot of pain. It's a very diverse range of symptomatology for people who have that." Dr. Wilhelm stated that the procedure Dr. Stiles employed "might improve some mechanical symptoms, but would not be expected to alleviate the pain." He did not assert that Carter was malingering and noted that the atrophying of Carter's quadriceps tended to substantiate Carter's complaints of pain. Dr. Wilhelm testified that muscle atrophy can result either from injury and disuse or pain syndrome.

During a February 13, 1998 visit, Dr. Wilhelm noticed an absence of quadriceps contraction in Carter's left leg and referred Carter to a neurologist, Dr. Shawke Soueidan. Dr. Soueidan performed an EMG of Carter's left leg and lower back, the results of which were minimally abnormal. Based on the results of various tests, Dr. Soueidan concluded that the atrophy was not progressive, but was caused by disuse secondary to Carter's knee pain. After an August 1998 follow-up visit, Dr. Soueidan noticed, however, progressive atrophy of the quadriceps, coupled with hypoflexia.

On June 11, 1998, Dr. Wilhelm performed arthroscopic surgery because Carter "had persistent left knee pain." He observed further erosion of the articular surface of the kneecap and "some inflamed ... lining tissue." Dr. Wilhelm found nothing that satisfactorily explained the extent of Carter's pain and admitted he was at a loss to explain the cause of the atrophy and hypoflexia. He described Carter's pain complaints as enigmatic and concluded that Carter "had a pain syndrome, which emanated from a work-related injury without a diagnosis for that ever provided by my intervention." Dr. Wilhelm explained that he could find no orthopedic explanation for Carter's pain; however, he concluded that Carter was pain-free prior to the accident and that the pain was caused by the work injury.

Following the hearing, the deputy commissioner ruled that Carter was unable to work as of December 30, 1997, and ordered compensation to be paid to Carter as of that date. The deputy commissioner also ruled, however, that the medical treatments Carter received from Drs. Camp, Wells, Wilhelm, and Soueidan were unauthorized and that Marriott was not responsible for those medical treatments. On review, the commission affirmed those rulings in part and reversed in part. The commission held that Carter was only partially disabled from December 30, 1997 through June 15, 1998 and that he had failed to adequately market his residual work capacity. The commission also held that Carter was totally disabled effective June 16, 1998. Although the commission agreed that Dr. Stiles was Carter's treating...