Peninsula Transp. Dist. Com'n v. Gibbs, 831712

• Decision Date: 18 January 1985
• Docket Number: No. 831712,831712
• Citation: 228 Va. 614,324 S.E.2d 662
• Parties: PENINSULA TRANSPORTATION DISTRICT COMMISSION v. Mary H. GIBBS. Record
• Court: Virginia Supreme Court

Page 662

324 S.E.2d 662

228 Va. 614

PENINSULA TRANSPORTATION DISTRICT COMMISSION v. Mary H. GIBBS.

Record No. 831712.

Supreme Court of Virginia.

Jan. 18, 1985.

George M. Kelley, III, Norfolk (Parker, Pollard & Brown, P.C., Richmond, on brief), for appellant.

Stephen M. Smith, Hampton (Joseph Smith, Ltd., Hampton, on brief), for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

This is an appeal in a worker's compensation case. The question for decision is whether the Industrial Commission erred in awarding compensation and medical expenses to the claimant, Mary H. Gibbs, despite her refusal to choose a physician from a panel selected by the employer, Peninsula Transportation District Commission, pursuant to Code § 65.1-88. ¹

This Code section requires an employer to furnish an injured employee "a physician chosen by the injured employee from a panel of at least three physicians selected by the employer." The Code section provides that the "unjustified refusal of the employee to accept such medical service ... shall bar the employee from further compensation until such refusal ceases."

In the present case, the record shows that on the morning of November 6, 1982, a Saturday, the claimant was operating one of the employer's buses in the City of Newport News when the vehicle was struck by an automobile, injuring the claimant. She was taken to the emergency room of a local hospital, where she was treated and released with instructions to consult her own physician.

On Monday morning, November 8, the claimant telephoned her physician and made an appointment to see him at 3:00 p.m. that same day. Later in the morning, she visited the employer's offices to make a formal report of her injury. ² She was given three forms, including a form listing the names and addresses of three general-practice physicians. She was asked to choose one of the doctors as her treating physician, but she said that all three were too "far away" and that she wanted to consult her attorney before signing any of the forms or selecting any of the physicians named in the form. When she stated that she had an appointment with her own doctor, she was advised that if she chose to be treated by him, the cost of his treatment would not be paid as part of her worker's compensation claim.

After consulting with her attorney, the claimant notified the employer that she would not make a selection from the panel of physicians but would be treated instead by her own doctor. She suffered temporary total disability from November 7, 1982, to January 2, 1983, and from January 6 to January 23, 1983. When the employer refused to pay compensation for these periods of disability, the claimant filed an application for a hearing with the Commission.

A deputy commissioner conducted a hearing on the application. He ruled that the claimant was barred from receiving compensation because her refusal to select a physician from the employer's panel was unjustified. The claimant then sought review by the full Commission. In a split decision, with Commissioner James dissenting, the Commission reversed the deputy commissioner's ruling and held that the claimant was justified in seeking treatment from her own physician. Accordingly, the Commission awarded the claimant compensation for the periods of temporary total disability she suffered and for her medical expenses.

The Commission's award in favor of the claimant was based upon its earlier decision in Dooley v. McCormick Foods, Inc., 56 O.I.C. 97 (1975). There, interpreting Code § 65.1-88, the Commission said [W]hen it is practical to do so the employer shall, upon the occurrence of an accidental injury, bring to the attention of the injured employee the names of the physicians on the employer's medical panel and the employee shall be afforded the opportunity to select the physician of his choice from that panel. If the employee refuses to make a selection of any single physician on the panel, after a meaningful opportunity is afforded him to do so, the employer shall then direct the employee to one of the panel physicians and the employee will be bound by the selection made by the employer.

56 O.I.C. at 99.

Applying the Dooley interpretation of Code § 65.1-88 to the present case, the Commission held:

[I]nasmuch as the employer did not offer a panel of physicians at the time the claimant was injured, when [the employer was] aware of her injuries and need for medical treatment and did not follow the procedure set forth in Dooley, supra, the claimant made a proper selection of [her own physician] as the treating physician.

We focus first upon the Commission's finding that the claimant was justified in seeking other medical care because the employer failed to offer the claimant a panel of physicians "when [it became] aware of her injuries and need for medical treatment." We find no requirement in Code § 65.1-88 concerning the time after an accident within which an employer must offer an employee the panel of physicians prescribed by the Code section;...