Yahner v. Fire-X Corp.

• Decision Date: 30 April 2019
• Docket Number: Record No. 1650-18-1
• Citation: 826 S.E.2d 888,70 Va.App. 265
• Court: Virginia Court of Appeals
• Parties: Rose E. YAHNER v. FIRE-X CORPORATION and Commonwealth Contractors Group Self-Insurance Association

70 Va.App. 265

826 S.E.2d 888

Rose E. YAHNER

v.FIRE-X CORPORATION and Commonwealth Contractors Group Self-Insurance Association

Record No. 1650-18-1

Court of Appeals of Virginia.

APRIL 30, 2019

Raymond L. Hogge, Jr. (Hogge Law, on brief), Norfolk, for appellant.

J. Brian Slaughter (Taylor Walker, P.C., on brief), for appellees.

Present: Chief Judge Decker, Judge Alston and Senior Judge Frank

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Rose Yahner (the claimant) appeals the decision of the Workers’ Compensation Commission denying her request for a change in treating physician and her claim for medical benefits for unauthorized treatment. For the following reasons, we conclude that the Commission did not err in determining that the claimant failed to demonstrate either that circumstances warranted a change in her treating physician or that she was justified in seeking unauthorized medical treatment. Consequently, we affirm the Commission’s decision.

I. BACKGROUND¹

On May 13, 2016, the claimant worked as a sales associate for Fire-X Corporation (the employer) selling fire suppression products. That day, the claimant injured her lower back while moving a fire extinguisher in the course of performing her job duties.

The claimant received an award of lifetime medical benefits.² Subsequently, she sought a change in her treating physician to Dr. Arthur Wardell and medical benefits covering the treatment provided by him. The employer defended on the grounds that Dr. Richard Guinand was her authorized treating physician and that Wardell’s treatment was unauthorized, unreasonable, and unnecessary. At the evidentiary hearing, the deputy commissioner considered evidence concerning the claimant’s medical condition and treatment.

Regarding the treatment that was furnished through the employer, the evidence showed that after the claimant’s injury, the employer presented her with a panel of physicians from which to choose. The claimant chose a physician from the panel, but after her initial appointment with him, she asked the employer for a different doctor. The employer allowed the claimant to choose another physician from the panel of ten options. The claimant then chose Dr. Guinand, a spine specialist, as her treating physician.

Dr. Guinand diagnosed lumbar radiculopathy

as well as sprains and strains of the sacroiliac region of her back. He authorized physical therapy and prescribed muscle relaxers, an anti-inflammatory, and pain medication. In addition, Dr. Guinand discussed injection treatment with the claimant, but she declined to consider it as an option. Dr. Guinand cleared the claimant for light duty in June 2016.

The claimant’s August 2016 MRI scan reflected no disc herniation or stenosis. Dr. Guinand discussed the claimant’s "normal MRI" with her and noted that "a reasonable amount of time and treatment has been provided." However, the claimant reported continuing pain. Guinand ordered a functional capacity evaluation (FCE) and allowed her to continue physical therapy "in the interim."

The claimant’s FCE was conducted by a physical therapist and orthopedic clinical specialist. During the FCE, the evaluator believed that the claimant did not sufficiently physically exert herself for purposes of the test. He questioned "the reliability and accuracy of [her] reports of pain and disability." The evaluator ultimately concluded that the claimant was able to return to full duty work.

Dr. Guinand reviewed the FCE report and made his own independent conclusions, agreeing with the evaluator’s "findings." At that time, the claimant had undergone thirty-seven physical therapy sessions. Dr. Guinand concluded that although the claimant had recovered 40% from her injury, she was no longer "making significant progress." He again offered sacroiliac injection treatment, and the claimant again declined. Dr. Guinand believed that she had reached the maximum improvement possible without injections. He discharged the claimant from physical therapy and approved her to return to work without restrictions.

The claimant testified at the hearing before the deputy commissioner. She explained that the physical therapy ordered under Guinand "helped a little bit." Although Dr. Guinand also offered injection treatment, the claimant declined because she did not "like needles." The claimant testified that Guinand "said he couldn’t find anything wrong," "stopped all therapy," and told her to "go to [her] primary doctor" "if [she] needed to see a doctor." However, the claimant also acknowledged that Guinand did not "give [her] a referral" to her primary care physician.

Nevertheless, the claimant went to her primary care doctor, who in turn referred her to an orthopedist, Dr. Wardell. He disagreed with the interpretation of the claimant’s August 2016 MRI as "normal." Wardell diagnosed the claimant with bilateral radiculopathy

and lumbar facet joint damage and placed her on restricted duty. According to the claimant, Wardell ordered a different type of physical therapy that in her estimation was significantly more effective than the physical therapy she had previously received. Her further improvement was around 30%. In addition to physical therapy, Dr. Wardell prescribed nerve medication, an anti-inflammatory, and a pain reliever. He also discussed injections with the claimant, but she did not pursue that course of treatment. Wardell opined that Guinand’s treatment of the claimant "was adequate until discharge" but that he should not have discharged her.

At the employer’s direction, the claimant returned to Dr. Guinand for a single appointment. He reviewed Dr. Wardell’s notes and opined that Wardell’s findings and treatment were similar to his and that the claimant’s "complaints" and responses were also similar. Dr. Guinand again concluded that "[u]ntil [the claimant] wishe[d] to proceed with injections [he] ha[d] nothing further to offer her."

Stephanie Lloyd, the nurse case manager assigned to the claimant, accompanied her to most of her appointments with Dr. Guinand. Lloyd explained that Guinand ultimately did not schedule an additional follow-up appointment with the claimant because she "refuse[d] the injections" and "there was not another appointment timeframe recommended at the time of the last appointment." She clarified that if the claimant wanted injection treatment, "another appointment would have been established."

After hearing the case, the deputy commissioner found that Dr. Guinand’s care was adequate. Consequently, the deputy commissioner concluded that the claimant failed to prove that the circumstances warranted a change of treating physician from Dr. Guinand to Dr. Wardell and held that the employer was not financially responsible for the unauthorized treatment that the claimant received from Wardell.

The claimant requested review by the Commission. The Commission unanimously affirmed the opinion of the deputy commissioner. It found that Dr. Guinand provided her with adequate care. In addition, the Commission found that Dr. Guinand did not discharge the claimant from his care or refer her to her primary care physician for treatment of her ongoing injury. It found that the claimant had established merely a "disagreement with a treatment regimen." Based on these findings, the Commission concluded that the circumstances did not warrant a change in the treating physician and denied her claim for medical benefits for the unauthorized treatment obtained from Wardell.

II. ANALYSIS

The claimant appeals the Commission’s denial of her claim. As the appellant in this case, she bears the "burden of showing" that the Commission committed reversible error. See Burke v. Catawba Hosp., 59 Va. App. 828, 838, 722 S.E.2d 684 (2012). Further, this Court defers to the Commission in its role as fact finder. Vital Link, Inc. v. Hope, 69 Va. App. 43, 53, 814 S.E.2d 537 (2018). A factual finding by the Commission is "conclusive and binding" as long as evidence in the record supports it. See Jeffreys v. Uninsured Emp’r’s Fund, ––– Va. ––––, ––––, 823 S.E.2d 476, 478 (2019) (quoting Code § 65.2-706(A) ). This principle applies "even [if] there is evidence in the record to support contrary findings." Id. at ––––, 823 S.E.2d at 478 (quoting Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507 (1983) ). In short, "[i]f there is evidence or [a] reasonable inference that can be drawn from the evidence to support the Commission’s findings, they will not be disturbed by [the] Court on appeal." Id. at ––––, 823 S.E.2d at 478 (quoting Caskey, 225 Va. at 411, 302 S.E.2d 507 ). It is well established that the appellate court does not "retry the facts," reweigh the evidence, or make its own determination of the "credibility of [the] witnesses." Id. at ––––, 823 S.E.2d at 478 (quoting Caskey, 225 Va. at 411, 302 S.E.2d 507 ).

Here, the claimant argues that the Commission erred by refusing to allow her to change the treating physician to Dr. Wardell and by declining to order payment of the treatment provided by him. We disagree and affirm for the reasons that follow.

A. Treating Physician

Whether a party has established that the circumstances warrant a change in the treating physician presents a mixed question of law and fact. See Food Lion, LLC v. Wright, 53 Va. App. 23, 26-27, 668 S.E.2d 814 (2008) ; Apple Constr. Corp. v. Sexton, 44 Va. App. 458, 461-62, 605 S.E.2d 351 (2004). As with all such mixed questions, we review the factual findings underpinning the Commission’s legal conclusions with great deference. See Jeffreys, ––– Va. at ––––, 823 S.E.2d 476 ; H.J. Holz & Son, Inc. v. Dumas-Thayer, 37 Va. App. 645, 652, 657, 561 S.E.2d 6 (2002). The party seeking the change in treating physician bears the burden of presenting facts to the Commission sufficient to support the change. See Food Lion, 53 Va. App. at 26-27, 668 S.E.2d 814 ; Apple Constr., 44 Va. App. at 461-62, 605 S.E.2d 351.

When an employer must provide medical care for a compensable injury suffered by an employee, it...