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SHAW JEWELERS, ET AL. v. SQUIERS

 


SHAW JEWELERS, ET AL. v.
SQUIERS
(unpublished)


March 18, 1997
Record No. 2320-96-2

SHAW JEWELERS, ET AL.

v.

BEULAH ALLENE SQUIERS (unpublished)

Judge Larry G. Elder
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia

MEMORANDUM OPINION[1]

BY JUDGE LARRY G. ELDER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Mark M. Caldwell, III (Ralph L. Whitt, Jr.; Sands, Anderson,
Marks & Miller, on brief), for appellants.

No brief or argument for appellee.


Shaw Jewelers and National Union Fire Insurance Company
(appellants) appeal a decision of the Workers’ Compensation
Commission (commission) awarding medical benefits and temporary
partial disability benefits to Beulah A. Squires (claimant).

Appellants contend that the commission erred as a matter of
law when it concluded that claimant was validly referred by her
treating physician to a chiropractor. They also contend that the
medical evidence was insufficient to support the commission’s
conclusion that claimant proved a change of condition since her
last award of compensation benefits. For the reasons that follow,
we affirm.

Appellants do not argue that the chiropractic treatment
provided by Dr. Critchfield was either unnecessary or unrelated
to claimant’s accident. Instead, appellants contend that they are
not responsible for the treatment provided by Dr. Critchfield
because claimant did not obtain a legally valid referral from Dr.
Allen for this treatment. We disagree.

It is well established that "’neither the employer nor
its insurance carrier may limit the treating physician in the
medical specialist, or treating facilities to which claimant may
be referred for treatment.’" Jensen Press v. Ale, 1
Va. App. 153, 158, 336 S.E.2d 522, 525 (1985) (citation omitted).
An employer is financially responsible for medical expenses
arising from the referral of a claimant’s treating physician that
are causally related to the workplace injury and deemed necessary
by the treating physician. See Volvo White Truck Corp.
v. Hedge
, 1 Va. App. 195, 200, 336 S.E.2d 903, 906 (1985).

The evidence relevant to Dr. Allen’s referral was limited to
claimant’s testimony at the hearing before the deputy
commissioner and a letter in the record written by Dr.
Critchfield. At the hearing, the deputy commissioner examined
claimant about her referral to Dr. Critchfield:

Q. Did Doctor Allen refer you to him?

A. Got referred through his office, yes, sir.

Q. Pardon?

A. Through his office.

Q. Through his office?

A. Yes.

Q. Did you [ask] Doctor Allen to refer you to Doctor
Critchfield?

A. They did through the — by telephone.

Q. Did you ask Doctor Allen to refer you to Doctor
Critchfield?

A. I had talked to him about it. I didn’t directly ask him
in his office at the last visit. I wasn’t seen by Doctor
Critchfield until approval was made by him. What he told his
secretary or his nurse, they wouldn’t see me until they had
approval.

In addition, a letter from Dr. Critchfield dated February 10,
1996 stated that "[claimant] was referred from the office of
Dr. Allen, whose care she had been under from the time of her
accident [o]n July 18, 1993."

We hold that Dr. Allen’s referral of claimant to Dr.
Critchfield was valid. The record established that claimant
learned of Dr. Critchfield from a neighbor and mentioned him to
Dr. Allen. Although Dr. Allen did not make a written referral, he
told "his secretary or his nurse" that he approved of
Dr. Critchfield’s treatment. One of Dr. Allen’s employees then
communicated his referral by telephone to Dr. Critchfield’s
office. Dr. Critchfield waited for Dr. Allen’s referral before
treating claimant. Although the better practice of referring
claimants might be to document each referral in writing, we hold
that the oral communication of Dr. Allen’s referral by one of his
employees constitutes a valid referral under the Workers’
Compensation Act.

Appellants argue that the referral was invalid because the
topic of chiropractic care was first broached by claimant. We
disagree. Although claimant may have brought up the possibility
of treating her injured back with chiropractic manipulation, Dr.
Allen had the opportunity to exercise his independent medical
judgment before recommending this option as a necessary medical
treatment. Furthermore, this is not a case in which Dr. Allen
merely "rubber-stamped" his approval of claimant’s
suggestion in order to placate her. The commission found that
"there is no evidence the referral was solely to satisfy the
claimant or that it was not intended as a true referral."
This finding is not contradicted by the evidence in the record
and is binding on appeal. Code ?65.2-706(A).

Appellants next challenge the commission’s award of temporary
partial disability benefits to claimant. They contend that the
evidence was insufficient to support the commission’s finding of
a change in condition of claimant’s back since the expiration of
her last award in 1994. We disagree.

"General principles of work[er]‘s compensation law
provide that ‘in an application for review of any award on the
ground of change in condition, the burden is on the party
alleging such change to prove his allegations by a preponderance
of the evidence.’" Great Atl. & Pac. Tea Co. v.
Bateman
, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987)
(quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va.
App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). "It is
fundamental that a finding of fact made by the Commission is
conclusive and binding upon this court on review. A question
raised by conflicting medical opinion is a question of
fact." Commonwealth v. Powell, 2 Va. App. 712, 714,
347 S.E.2d 532, 533 (1986).

We hold that the evidence was sufficient to prove that
claimant experienced a change in condition in her back. The
evidence before the commission consisted of the medical opinions
of Dr. Allen, claimant’s treating physician since her accident in
1993, Dr. Critchfield, who first examined claimant on January 16,
1996, and Dr. Debs, who examined claimant on March 22, 1996 at
the request of appellants. The medical evidence indicates that
claimant saw Dr. Allen in April and May after experiencing pain
in the area of her injury. On October 31, 1995, Dr. Allen opined
in a letter that pain in claimant’s back had rendered her
partially disabled since January, 1995. He stated that since
January, "[claimant] has had flair ups of her back strain,
both thoracic and lumbosacral, and also problems with her
elbow." Dr. Allen referred claimant to Dr. Critchfield for
chiropractic treatment of this injury in January, 1996. Dr.
Critchfield indicated in his notes from his initial examination
of claimant on January 16, 1996 that her current back condition
was related to her injury in 1993. Dr. Debs, on the other hand,
opined that "[claimant] is physically able to resume her
regular duty activities as a jewelry sales clerk at this
time." The commission found that "claimant has
established a change in condition, she no longer can work full
time because of her back problem." This Court on appeal does
not judge the credibility of the witnesses or weigh the evidence.
See Celanese Fibers Co. v. Johnson, 229 Va. 117,
121, 326 S.E.2d 687, 690 (1985). "The fact that there is
contrary evidence in the record is of no consequence if there is
credible evidence to support the commission’s finding." Wagner
Enters., Inc. v. Brooks
, 12 Va. App. 890, 894, 407 S.E.2d 32,
35 (1991). We cannot say that the commission’s factual finding of
a change of condition in claimant’s back is unsupported by
credible evidence in the record.

For the foregoing reasons, we affirm the commission’s award of
medical benefits and temporary partial disability benefits.

Affirmed.

FOOTNOTES:

[1]Pursuant
to Code ?17-116.010 this opinion is not designated for
publication.

 

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