Schwab Const. v. McCarter

• Decision Date: 24 June 1997
• Docket Number: No. 2561-96-4,2561-96-4
• Court: Virginia Court of Appeals
• Parties: SCHWAB CONSTRUCTION and Cincinnati Insurance Company v. Bret Duane McCARTER. Record

Page 562

486 S.E.2d 562

25 Va.App. 104

SCHWAB CONSTRUCTION and Cincinnati Insurance Company v. Bret Duane McCARTER.

Record No. 2561-96-4.

Court of Appeals of Virginia,

Alexandria.

June 24, 1997.

William E. Glover, Fredericksburg (Glover & Dahnk, on briefs), for appellants.

Peter J. Jones, Manassas, for appellee.

Present: FITZPATRICK and OVERTON, JJ., and DUFF, Senior Judge.

DUFF, Senior Judge.

Schwab Construction and its insurer (collectively "employer") contend the Workers' Compensation Commission ("commission") erred in finding that Bret Duane McCarter ("claimant") justifiably refused medical treatment directed by Dr. Neil Kahanovitz. Pursuant to Rule 5A:21(b), claimant presents the additional question of whether the commission erred in ordering him to select a new physician from a panel offered by employer.

"Following established principles, we review the evidence in the light most favorable to the prevailing party." R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990). "Factual findings of the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal." Southern Iron Works, Inc. v. Wallace, 16 Va.App. 131, 134, 428 S.E.2d 32, 34 (1993).

I.

Claimant sustained a compensable injury to his neck and back on November 6, 1992. He selected Dr. Donald MacNay as his primary treating physician on February 3, 1993. In approximately November 1994, claimant's attorney and employer agreed that Dr. Neil Kahanovitz would become claimant's new treating physician. Claimant, however, never considered Dr. Kahanovitz to be his treating physician and instead viewed him as a surgical consult.

Claimant saw Dr. Kahanovitz on three occasions: November 3, 1994, December 19, 1994, and March 16, 1995. On December 19, 1994, Dr. Kahanovitz advised claimant that he was not a candidate for surgery or physical therapy. On March 16, 1995, he provided claimant with the following "To Whom it May Concern" letter:

Please be advised that Mr. Bret McCarter has been under my care since November 3, 1994. The patient was seen in my office today and upon evaluation Mr. McCarter does not need surgery. Since the patient lives in Manassas he should be referred back to Dr. Macmay [sic] for treatment of his chronic back pain. If you have any questions or concerns, feel free to call my office.

At that point, Dr. Kahanovitz considered himself to have released claimant from his care, and claimant considered Dr. MacNay to be his treating physician. Claimant subsequently saw Dr. MacNay on May 22, June 21, August 8, and September 9, 1995.

Claimant became concerned when employer made statements to him to the effect that he should be receiving detoxification treatment. Dr. Kahanovitz had never told claimant that he needed such treatment. On July 17, 1995, claimant called Dr. Kahanovitz for clarification. During that conversation, claimant did not ask Dr. Kahanovitz for a referral to another treating physician.

Despite the March 16 letter of referral, Dr. Kahanovitz continued to maintain contact with employer. On March 23, 1995, he advised the rehabilitation specialist retained by employer that claimant was a suitable candidate for a combined pain management and detoxification program offered through Prince William Hospital. He advised employer's claims specialist John Crow on July 17, 1995, however, that claimant appeared to be accomplishing detoxification under the guidance of Dr. MacNay and no longer needed that treatment through Prince William Hospital.

Dr. Kahanovitz further advised Crow on July 17 that claimant was requesting a referral to another treating physician. In fact, claimant was satisfied with Dr. MacNay and had not requested a referral. On October 23, 1995, Dr. Kahanovitz again notified Crow that claimant should be offered a new treating physician. He wrote that "unless Dr. MacNay has a specific detoxification program designed to eliminate all narcotic medications from the patient's treatment program, I would strongly recommend that someone else be picked from that [geographic] area."

On July 26, 1995, Crow directed claimant to choose a new treating physician from a panel of three to be offered by employer. Claimant refused, asserting that he had been referred back to Dr. MacNay by Dr. Kahanovitz on March 16, 1995, and, therefore, neither employer nor Dr. Kahanovitz could compel him to choose a new physician. Employer responded by filing the application that is the source of this appeal.

Code § 65.2-603(B) provides for the suspension of benefits if a claimant unjustifiably refuses medical treatment. "Once a physician is selected, it is well settled that an employee who is referred for additional medical services by the treating physician must accept the medical service or forfeit compensation for as long as the refusal persists." Biafore v. Kitchin Equipment Co., 18 Va.App. 474, 479, 445 S.E.2d 496, 498 (1994). In such a case, "[t]he question is not whether the recommended procedure was justified, but whether the patient's refusal to submit to it was justified. The matter of justification must be considered from the viewpoint of the patient and in light of the information which was available to him." Holland v. Virginia Bridge Structures, Inc., 10 Va.App. 660, 662, 394 S.E.2d 867, 868 (1990).

"Medical management of the employee is not to be directed by the employer. An employer can require an employee to select an attending physician from its panel of three, but only an attending physician or the [Workers' Compensation] Commission may require an employee to see another physician." Richmond Memorial Hospital v. Allen, 3 Va.App. 314, 318, 349 S.E.2d 419, 422 (1986).

The commission found that claimant reasonably believed that Dr. MacNay was his treating physician. That finding is supported by claimant's testimony and Dr. Kahanovitz's March 16, 1995 letter. Because that finding is supported by credible evidence, we will not disturb it on appeal. Accordingly, we find that claimant was justified in refusing to choose another physician despite Dr. Kahanovitz's recommendation. At the time that recommendation was made, neither employer nor Dr. Kahanovitz could compel claimant to change treating physicians.

We therefore hold that the commission did not err in finding that claimant reasonably believed Dr. MacNay was his treating physician. We further hold that claimant did not unjustifiably refuse employer's offer to choose a new physician. For these reasons, we affirm that portion of the commission's decision.

II.

As an additional question raised pursuant to Rule 5A:21(b), claimant contends that the commission erred when it ordered him to select a new physician from a panel offered by employer after finding that he had not unjustifiably refused medical treatment. We agree with claimant and find that he was not afforded proper notice on this issue.

Employer's November 14, 1995, application for hearing asserted a change of condition based on claimant's unjustifiable refusal "to submit to medical care." In its letter in support of the application, employer cited claimant's refusal to select a new treating physician as recommended by Dr. Kahanovitz. Employer contended the refusal was unjustified because Dr. Kahanovitz was claimant's primary treating physician. The only remedy sought by employer was termination of benefits. The commission's Notice of Hearing advised only that the subject of the hearing would be the application filed on November 14, 1995.

The deputy commissioner held that Dr. Kahanovitz was claimant's treating physician at the time the recommendation to change physicians was made. The deputy commissioner then concluded that claimant's refusal to do so was unjustified. The full commission reversed the deputy commissioner, finding that claimant reasonably believed that Dr. MacNay was his treating physician. Nevertheless, the commission ordered claimant to choose a new physician from a panel offered by employer "given the failure of Dr. MacNay's regimen to bring about improvement in the claimant's condition after several years of intensive treatment."

"Pleading requirements in administrative proceedings before the [Workers' Compensation] Commission are traditionally more informal than judicial proceedings." Sergio's Pizza v. Soncini, 1 Va.App. 370, 376, 339 S.E.2d 204, 207 (1986). "[R]igid or technical rules of pleading ... shall not apply so long as the procedures adopted protect the substantial rights of the parties." Id. "The procedure utilized must afford the parties minimal due process safeguards." Id. " 'An elementary and fundamental requirement of due process in any proceeding which is to be accorded any finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections.' " Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 417, 270 S.E.2d 723, 726 (1980) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)).

In Sergio's Pizza, we held that an employer had not been afforded proper notice where the...