Southland Corp. v. Welch
| Decision Date | 31 October 2000 |
| Docket Number | Record No. 0532-00-4. |
| Court | Virginia Court of Appeals |
| Parties | The SOUTHLAND CORPORATION, t/a 7-Eleven Store # 23305 and American Protection Insurance Company v. Sharon WELCH. |
Edward H. Grove, III (Brault, Palmer, Grove, Zimmerman, White & Steinhilber I, LP, on brief), Fairfax, for appellants.
Diane C.H. McNamara for appellee.
Present: FITZPATRICK, C.J., and BENTON and ANNUNZIATA, JJ.
This appeal arises from the Workers' Compensation Commission's rulings that Sharon Welch's medical treatment was unauthorized and that she did not unjustifiably refuse medical treatment. The Southland Corporation contends the commission erred in ruling that Welch's failure to select a physician from a panel did not bar her from receiving wage loss indemnity benefits. By cross-appeal, Welch contends the commission erred in ruling that her failure to select a physician from the panel rendered her treatment unauthorized. We affirm the commission's award.
At the evidentiary hearing on Welch's application for benefits, the evidence proved that Welch was injured at work on September 3, 1998, when a thirty to forty pound carton fell onto her right shoulder, neck, and back. When her supervisor arrived at work, Welch reported her injury and left work because she was experiencing pain. Although the supervisor did not direct Welch to any specific medical provider, Welch called her supervisor from home to tell her she intended to call Kaiser Permanente, Welch's medical insurance company, for medical treatment. Her supervisor told her to do what she needed to do to get treatment.
That night, a person at Kaiser advised Welch by telephone to apply ice and heat on her injury, take Tylenol, and see a doctor in the morning if the injury was not better. The next morning, Welch went to Kaiser and was examined by a nurse practitioner, who instructed Welch to take several prescribed medicines and to return if the symptoms increased or persisted. After leaving Kaiser, Welch went to her place of employment and discussed completing an accident report with the store manager. Although Welch told the manager that she had gone to Kaiser for treatment, the manager did not tell her to seek treatment elsewhere.
Welch returned to Kaiser on September 8, 1998, and was evaluated by Dr. Beverly Pfister. Dr. Pfister diagnosed paracervical and paralumbar strain, advised Welch to continue her medication, and ordered physical therapy.
By letter dated September 9, 1998, a claims adjuster for Southland's workers' compensation carrier advised Welch that her treatment by the Kaiser doctors was not authorized, that Southland would pay those doctors "to date," and that Welch should seek treatment from one of three doctors listed in the letter. Welch received this letter three or four days after September 9; however, she decided to continue treatment at Kaiser and returned to see Dr. Pfister on September 15 because her "pain [was] worse." Dr. Pfister's notes reflect that at the date of this evaluation Welch was still awaiting her first visit to physical therapy. Welch continued to receive treatment from Dr. Pfister and other doctors at Kaiser until she was released to return to light duty work on February 1, 1999.
Affirming the deputy commissioner's decision, the commission determined that Southland's offer of a panel of physicians was neither untimely nor unreasonable. Thus, the commission ruled that Southland "was not financially responsible for treatment rendered by [Welch's] unauthorized physicians after receipt of the proffered panel." The commission also ruled that Welch's decision to continue "treatment by her unauthorized physician is not necessarily the equivalent of a refusal of medical services." Finding that Welch had not unjustifiably refused treatment and that no evidence proved the unauthorized treatment adversely affected her recovery, the commission awarded Welch wage loss benefits for her periods of disability.
In pertinent part, Code 65.2-603 provides as follows:
Applying the predecessor to this statute, we ruled that "[a]n attending physician selected by an employee becomes the treating physician if the employer fails or refuses to provide a panel of physicians." Davis v. Broom & Williamson Tobacco Co., 3 Va. App. 123, 126, 348 S.E.2d 420, 421 (1986). The principle is well established, however, that although Code § 65.2-603 contains "no requirement . . . concerning the time after an accident within which an employer must offer an employee the panel of physicians prescribed by the Code section . , the appropriate time must be determined by resort to a rule of reasonableness, with the time varying from case to case depending upon the different circumstances involved." Peninsula Transp. Dist. Comm'n v. Gibbs, 228 Va. 614, 618, 324 S.E.2d 662, 664 (1985).
Among the findings the commission...
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Newport News Shipbuilding & Dry Dock Co. v. Wardell Orthopaedics, P.C.
...compensable. But the use of unauthorized medical service is not necessarily a refusal of medical service." Southland Corp. v. Welch , 33 Va.App. 633, 639, 536 S.E.2d 443, 446 (2000). As we have stated before, "the matter of justification must be considered from the viewpoint of the [employe......
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Locksmith v. Chippenham Hospital, Record No. 2798-03-2 (VA 5/11/2004)
...becomes the treating physician if the employer fails or refuses to provide a panel of physicians," Southland Corp. v. Welch, 33 Va. App. 633, 637-38, 536 S.E.2d 443, 445 (2000), and that an "employer's denial of liability under the Act is equivalent to a refusal to provide the employee with......