Turner Gilbane Jv v. Guzman

• Decision Date: 22 November 2011
• Docket Number: Record No. 0392–11–4.
• Citation: 59 Va.App. 128,717 S.E.2d 433
• Parties: TURNER GILBANE JV and Zurich American Insurance Company v. Jose GUZMAN.
• Court: Virginia Court of Appeals

59 Va.App. 128

717 S.E.2d 433

TURNER GILBANE JV and Zurich American Insurance Company

v.Jose GUZMAN.

Record No. 0392–11–4.

Court of Appeals of Virginia, Alexandria.

Nov. 22, 2011.

Joseph F. Giordano (Kathryn Lea Harman; Semmes, Bowen & Semmes, P.C., Vienna, on briefs), for appellants.

Andrew S. Kasmer for appellee.

Present: PETTY and ALSTON, JJ., and COLEMAN, S.J.

COLEMAN, Judge.

Turner Gilbane JV and its insurer, Zurich American Insurance Company (collectively “employer”), appeal a decision of the Virginia Workers' Compensation Commission (“commission”) awarding Jose Guzman (“claimant”) temporary total disability benefits and medical benefits. On appeal, employer argues the evidence did not support the commission's findings. In addition, employer argues the commission erred in: (1) finding claimant was offered a defective panel of physicians and did not establish a course of treatment; (2) finding Dr. Michael Davis was not claimant's treating physician; (3) giving insufficient weight to the opinion of Dr. Davis; (4) finding Quality Chiropractic and Dr. Vandana Sharma were claimant's treating physicians; and (5) holding claimant was entitled to temporary total disability benefits from September 8, 2009 through March 4, 2010, inclusive. For the following reasons, we affirm the decision of the commission.

Background

On appeal from a decision of the commission, we review the evidence in the light most favorable to claimant, the party prevailing below. Lynchburg Foundry Co. v. Goad, 15 Va.App. 710, 712, 427 S.E.2d 215, 217 (1993).

Claimant worked as a laborer for employer, and his job required him to move heavy items. On September 8, 2009, claimant was washing trucks and washing the floor when a truck struck him from behind, causing him to fall to the floor. Claimant was unconscious for a period of time, and he traveled by ambulance to the hospital where he reported having head, neck, and back pain. Employer knew of the accident on the date it occurred.

On September 10, 2009, claimant sought treatment from the chiropractors at Quality Chiropractic, whose name claimant obtained from an internet search. Claimant reported having head, neck, and back pain to the chiropractor. Dr. Daniel J. Shaver, one of the chiropractors who treated claimant, recommended that he see a neurologist and that he refrain from work until September 14, 2009. In addition, the September 10, 2009 chiropractor's report states: “To date [claimant's] employer had not given him any instructions to seek medical care anywhere therefore the patient came to my office.” Claimant continued a course of treatment with the chiropractors. After a series of visits, the chiropractors advised claimant not to return to work through at least September 29, 2009.

On September 29, 2009, claimant saw a neurologist, Dr. Sharma, as recommended by his chiropractor. Dr. Sharma assessed claimant with post-concussion syndrome, including headaches and dizziness. Dr. Sharma also diagnosed claimant with post-traumatic cervical and lumbar sacral strain syndrome. He recommended medications for headaches and physical therapy for the management of cervical and lumbar sacral strain.

By letter dated September 21, 2009, employer provided claimant with a panel of physicians that consisted of Dr. Davis of Virginia Medical Acute Care (“VMAC”), Concentra Medical Center, Saratoga Medical Clinic, and the names of three orthopedic surgeons from The Manus Center. On September 30, 2009, claimant saw Dr. Davis. An Attending Physician's report from VMAC, dated September 30, 2009 and signed by Dr. Davis, states: “F/U neuro as he has not returned to work,” presumably directing claimant to “follow up with a neurologist.” Dr. Davis's report further stated that claimant had reached maximum medical improvement.

Claimant testified at the hearing that after seeing Dr. Davis, he understood he was supposed to “visit a neurologist” and “get treatment with the chiropractor.” Claimant stated that he was not told to return to VMAC and he continued to see the neurologist, Dr. Sharma, and the chiropractors at Quality Chiropractic. He stated he received work status reports from those doctors, which his brother provided to employer. The record contains work status reports from the chiropractor's practice, which were addressed to Watson Morgan, claimant's supervisor.

The record also contains reports documenting claimant's continuing physical problems with post-concussion syndrome and cervical and lumbar injuries, but noting his conditions improved over the next several months. However, the reports state that claimant was unfit to return to work until March 4, 2010, the date Dr. Sharma released him to light-duty work.

On May 6, 2010, Dr. John Cochran, a neurologist, examined claimant and reviewed claimant's medical records at employer's request. Dr. Cochran opined that claimant had soft tissue injury that explained his interscapular pain. Dr. Cochran detected no signs that claimant was malingering or magnifying his symptoms, and he opined that claimant was able to return to light-duty work with no heavy lifting.

Claimant requested awards of medical benefits and temporary total disability compensation from September 8, 2009 through March 4, 2010, alleging head, neck, back, and left shoulder injuries as a result of the accident. Employer defended on the grounds that claimant did not suffer a head injury and his treatment with the neurologist, Dr. Sharma, was unauthorized.

The commission found that, although employer timely provided claimant with a panel of physicians, the panel was defective because it contained only two physicians instead of three as required by Code § 65.2–603. The commission also held claimant did not establish a course of treatment with Dr. Davis. Thus, Dr. Davis was not claimant's authorized treating physician. Therefore, claimant was free to choose his treating physician and course of medical treatment. The commission found Dr. Sharma and the chiropractors at Quality Chiropractic were claimant's authorized treating physicians and their opinions were entitled to great weight. The commission found the evidence proved claimant was unable to work through March 4, 2010, and it awarded him temporary total disability benefits from September 9, 2009 through March 4, 2010, inclusive. It also awarded medical benefits for as long as necessary for claimant's neck, back, left shoulder, and head injuries that were caused by his accident.

Employer appeals the commission's decision to this Court.

Analysis

“Factual findings of the commission will not be disturbed on appeal unless plainly wrong or without credible evidence to support them.” Georgia Pac. Corp. v. Dancy, 17 Va.App. 128, 135, 435 S.E.2d 898, 902 (1993). “In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses.” Wagner Enters., Inc. v. Brooks, 12 Va.App. 890, 894, 407 S.E.2d 32, 35 (1991).

Code § 65.2–603(A)(1) provides: “As long as necessary after an accident, the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician chosen by the injured employee from a panel of at least three physicians selected by the employer and such other necessary medical attention.”

The panel provided by employer was defective. The panel included the name of one physician and the names of a medical center, a medical clinic, and three orthopedic surgeons from the same practice, The Manus Center. The Manus Center treats hand and upper extremity injuries. Claimant suffered injuries to his head, neck, and back, and he did not report hand or upper extremity injuries. Moreover, “[a] clinic ... is not a physician as envisioned by the statute.” Goodyear Tire & Rubber Co. v. Pierce, 9 Va.App. 120, 129–30, 384 S.E.2d 333, 339 (1989) (decided under predecessor statute Code § 65.1–88). Additionally, employer's panel did not contain a neurologist and the commission noted that the claimant suffered a head injury resulting in a concussion during the incident—a finding not appealed by employer. Accordingly, the evidence supports the commission's finding that the panel was defective.

“Code § 65.2–603 allows an employee to select from a panel of physicians offered by the employer, or in the absence of a forthcoming offer, to select a physician of the employee's choice.” Biafore v. Kitchin Equip. Co., 18 Va.App. 474, 478, 445 S.E.2d 496, 498 (1994). “[T]he employer has the obligation and responsibility to supply medical treatment that is prompt, in compliance with the statutory requirements on choice of physicians, and adequate. If the employer fails to do so, the claimant...