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VIRGINIA ELECTRIC & POWER COMPANY v. BOBBITT


VIRGINIA ELECTRIC &
POWER COMPANY

v.

BOBBITT(unpublished)


March 11, 1997
Record No. 1927-96-2

VIRGINIA ELECTRIC & POWER COMPANY

v.

OLA J. THORPE BOBBITT (unpublished)

Present: Judges Benton, Annunziata and Senior Judge Cole

Argued at Richmond, Virginia

MEMORANDUM OPINION[1] BY JUDGE JAMES W. BENTON, JR.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Kathryn Spruill Lingle (Midkiff & Hiner, P.C., on brief),
for appellant.

P. George Eliades II (Eliades & Butterworth, on brief), for
appellee.


Virginia Electric & Power Company contends that the
commission erred in ruling that the Company was required to pay
for medical treatment that Ola J. Thorpe Bobbitt received from
Dr. Mark E. deBlois. We disagree and affirm the commission’s
decision.

I.

The commission’s decision that the Company was
responsible for the treatment Bobbitt received from Dr. deBlois
was based upon the commission’s consideration of the testimony
and other evidence in the record. We review the commission’s
decisions under well established principles. We must uphold the
commission’s factual findings when those findings are supported
by credible evidence. See Code ?65.2-706; James v.
Capitol Steel Constr. Co.
, 8 Va. App. 512, 515, 382 S.E.2d
487, 488 (1989). Consistent with that principle are the following
additional principles of appellate review:

We do not retry the facts before the
Commission nor do we review the weight, preponderance of the
evidence, or the credibility of witnesses. If there is
evidence or reasonable inference that can be drawn from the
evidence to support the Commission’s findings, they will not
be disturbed by this Court on appeal, even though there is
evidence in the record to support contrary findings of fact.

Caskey v. Dan River Mills, Inc., 225 Va.
405, 411, 302 S.E.2d 507, 510-11 (1983).

II.

To implement these principles on appeal, we view
the evidence in the light most favorable to Bobbitt, who
prevailed before the commission. See R.G. Moore Bldg.
Corp. v. Mullins
, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). So viewed, the evidence proved that in 1991 Bobbitt
sustained compensable back and shoulder injuries while employed
by the Company. Initially, Bobbitt was treated by Dr. Thomas
Butterworth. Dr. Butterworth operated on her left shoulder.
During the course of his treatment for her back injury, Dr.
Butterworth referred Bobbitt to Dr. Kenneth I. Kiluk for a
neurosurgical consultation. Dr. Kiluk ordered a myelogram, which
"did not demonstrate any evidence of [a] disc problem."
However, a CAT Scan indicated "central disc herniation
L5-S1." Dr. Kiluk gave her injections, but noted that he saw
nothing to do "from a neurosurgical point of view."

Dr. Butterworth provided epidural blocks and
other treatment for Bobbitt’s disc problems at L5-S1. He also
ordered MRIs in 1993 which showed Bobbitt had significant disc
herniation. During these treatments, Bobbitt developed
psychiatric problems and was referred to a psychiatrist. She was
hospitalized in 1993 for major depression that was related to her
ongoing chronic pain. During her hospitalization, she was sent to
see Dr. Harold Young, another neurosurgeon. Dr. Butterworth noted
that Dr. Young "is talking about surgery."

In May of 1993, Dr. Butterworth discussed with
Bobbitt the surgical option of removal of a disc and fusion. His
reports indicate that she was still in depression and very
hesitant about surgery. Bobbitt’s psychiatric therapist noted
that Bobbitt "had it out [with] Dr. Butterworth, who has now
advised surgery." In September of 1993, Dr. Butterworth
stated that he had "nothing to offer [Bobbitt] except
epidural and surgery."

Bobbitt continued to experience severe pain and
became distrustful of Dr. Butterworth. With the concurrence of
Bobbitt’s therapist, Bobbitt’s psychiatrist referred Bobbitt to
Dr. Harold Young, the neurosurgeon who had treated her while she
was hospitalized. After that referral, Bobbitt’s psychiatrist
retired from practice. Another psychiatrist, Dr. S. K. Niazi,
became her treating physician. Dr. Niazi continued to treat
Bobbitt for major depression, changed her medication, and
monitored her progress with Dr. Young.

Following his examination of Bobbitt, Dr. Young,
who earlier was "talking about surgery," noted that she
"has no focal neurological deficit but does have limitation
of straight leg raising bilaterally and . . . she is not a good
candidate for lumbar diskectomy for the degenerated disk."
Dr. Niazi’s notes indicate, however, that Bobbitt continued to
experience pain and that she now was willing to reconsider
surgery. Bobbitt told Dr. Niazi that she wanted another opinion
concerning surgery and asked him for the name of an orthopaedic
surgeon. Dr. Niazi’s notes state that Dr. Young, the
neurosurgeon, "cannot operate on her back."

In September 1994, Dr. Niazi wrote to Dr.
deBlois, who is associated with the same clinic as Dr.
Butterworth. He stated the following:

The above named is my patient and has asked
to be referred to you for a second opinion of her back
problems. She has already scheduled an appointment with you.
Also, she has asked that after you see her you then refer her
back to her other physician for follow up care.

Dr. deBlois examined Bobbitt, noted that her last
MRI was done in May 1993, and showed a large disc herniation.
After Dr. deBlois ordered a repeat MRI, he recommended surgery.

Bobbitt returned to Dr. Niazi after her
evaluation by Dr. deBlois. Dr. Niazi made the following notation
of that visit:

Reports that she has been doing somewhat
better emotionally. She has gone to another [d]octor who is
going to operate on her in 2 weeks. She is going to have
surgery on her back and there is some fear about that but
patient is able to accept it and mostly talked about those
feelings in this session. We provided support therapy. We
will see the patient after surgery. Continue current
treatment plan.

Dr. deBlois performed the surgery two weeks after
Bobbitt’s visit to Dr. Niazi. Dr. Niazi saw her after the surgery
and noted that he was "continuing the current treatment
plan, medications. She was seen for supportive therapy and will
[be] reevaluate[d] in four weeks."

III.

Code ?65.2-603 requires an injured employee to
accept reasonable and necessary care occasioned by an
occupational injury. "Whether the employer is responsible
for medical expenses . . . depends upon: (1) whether the medical
service was causally related to the [compensable] injury; (2)
whether such other medical attention was necessary; and (3)
whether the treating physician made a referral to the
patient." Volvo White Truck Corp. v. Hedge, 1 Va.
App. 195, 199, 336 S.E.2d 903, 906 (1985). "Medical evidence
. . . is subject to the commission’s consideration and
weighing." Hungerford Mechanical Corp. v. Hobson, 11
Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).

The Company does not dispute the causal relation
between the injury and the surgery or the need for medical
treatment. Moreover, the commission found, and credible evidence
proved, that Dr. Niazi was Bobbitt’s treating physician. The
Company also does not contest that finding. The Company contends
that the evidence does not support the commission’s conclusion
that Bobbitt received a referral from Dr. Niazi to Dr. deBlois.
That argument is meritless.

On the evidence in the record, the commission
found as follows:

The Deputy Commissioner found that the
treatment by Dr. deBlois is authorized because of a referral
by the treating psychiatrist. The employer argues that Dr.
Niazi referred the claimant to Dr. deBlois only for a second
opinion, not for treatment. However, the record does not
support this. Initially, Dr. Niazi wrote that the claimant
only wished to have a second opinion by Dr. deBlois, and
wanted then to return to her neurosurgeon for follow-up care.
However, it is clear that the claimant reconsidered and
acquiesced in Dr. deBlois’ recommendation of surgery, which
was opposed by Dr. Young but supported by her previous
orthopedist, Dr. Butterworth. Dr. Niazi’s records indicate
that he was aware of and consented to the claimant’s decision
to pursue orthopedic care and surgery with Dr. deBlois.
Therefore, the continued treatment and surgery by Dr. deBlois
was with the knowledge and consent of an authorized treating
physician, Dr. Niazi.

The commission’s decision is based on abundant
credible evidence. Dr. Niazi’s letter to Dr. deBlois is
indisputedly a letter of referral of Bobbitt to Dr. deBlois.
Furthermore, the evidence clearly proved that Dr. Niazi learned
at least two weeks prior to the planned surgery that Dr. deBlois
would perform the surgery and that Bobbitt accepted the need for
the surgery. Dr. Niazi reported that he was providing support
therapy and would continue with that therapy after surgery. The
direct evidence thus proves that Dr. Niazi, Bobbitt’s treating
physician, made the referral, was aware of the planned surgery,
acquiesced in the surgery, and planned to provide psychiatric
support for Bobbitt as she prepared for surgery. Both direct
credible evidence and inferences that flow from the evidence
prove Dr. Niazi never objected to surgery, encouraged Bobbitt to
accept it, and continued to provide support to her. Thus, the
evidence proved he consented to the surgery. Moreover, the record
clearly established that the surgery was reasonable medical
treatment. Indeed, it had been previously recommended by Dr.
Butterworth.

Accordingly, we affirm the award.

Affirmed.

 


Cole, J., dissenting.

I respectfully dissent because I agree with
Chairman Tarr’s dissenting opinion finding that the medical
treatment rendered by Dr. Mark E. deBlois was unauthorized.

Decisions of the commission as to questions of
fact are conclusive and binding upon this Court if supported by
credible evidence. However, when the facts are undisputed, as in
this case, the sufficiency of the evidence then becomes one of
law. Breckenridge v. Marval Poultry Co., 228 Va. 191, 196,
319 S.E.2d 769, 772 (1984); Wells v. Commonwealth Dept. of
Transp.
, 15 Va. App. 561, 563, 425 S.E.2d 536, 537 (1993).

The claimant (Bobbitt) sustained an injury to her
back on May 31, 1991, when she lifted a container while
performing her work duty as a stock helper. She came under the
care of Dr. Thomas R. Butterworth, Jr., an orthopedic surgeon,
for treatment.

After two years of conservative treatment, a note
in the medical records summarized Bobbitt’s condition:

Ms. Ola Bobbitt had an MRI at Chippenham
Medical Center on May 13, 1993. This showed a large, central
herniated disc at the L5-S1 level. She has continuous back
and left leg pain. She is unable to bend or lift and is
limited in walking, standing or sitting. . . .

Her only option for treatment at this time is
surgery. However, she is also suffering from severe
depression at this time and is unable to make a decision
regarding surgery.

Her physical condition and severe depression
make her unable to perform any type of work at this stage.
Her prognosis is not optimistic at this time.

Bobbitt had some severe psychiatric problems
caused in part by the accident, but also related to severe family
problems. In a report to the employer on July 14, 1993, her
psychiatrist, Dr. A. M. Masri, stated:

Mrs. Bobbitt has remained under my care, has
been seen on a weekly basis for supportive therapy. She has
also continued to require medication for her severe
disturbances of mood. On several occasions, she has displayed
frankly manic affect, with pressured speech, flight of ideas,
and inappropriate affective quality. Also, she has presented
on several occasions severely depressed, reporting overt
suicidal impulses, feelings of hopelessness. We were able
with a great deal of support to keep her out of the hospital,
but this is always a possibility.

Therefore, in the spring of 1993 Dr. Butterworth
was Bobbitt’s treating physician for orthopedic problems and Dr.
Masri was the treating physician for psychiatric problems.

In a letter dated September 27, 1993, to the
employer, Dr. Masri advised that he had referred Bobbitt to Dr.
Harold Young, Chairman of Neurosurgery, Medical College of
Virginia ("MCV"). Dr. Masri stated that he was in no
way criticizing the care given by Dr. Butterworth, but that
Bobbitt had developed strong negative feelings toward his
treatment and focused her feelings upon Dr. Butterworth. Dr.
Masri opined that this was not an unusual situation but did
affect the prognosis and treatment outcome.

In a letter to the employer dated October 11,
1993, Dr. Butterworth reported that Bobbitt thought of him as a
"company doctor" and refused to have the prescribed
epidurals. Dr. Butterworth stated that Bobbitt’s psychiatrist
wanted to send her to Dr. Young at MCV for his opinion. Dr.
Butterworth stated that Dr. Young is a respected neurosurgeon and
suggested that the last MRI be sent to him. Therefore, in October
of 1993, the treating orthopedic physician was changed to Dr.
Young with the approval of Dr. Butterworth, Dr. Masri, and the
employer.

Shortly thereafter Dr. Masri retired from his
psychiatric practice and Dr. S. K. Niazi became Bobbitt’s
psychiatric treating physician. Dr. Niazi first saw Bobbitt for
evaluation on April 19, 1994. Dr. Niazi noted Bobbitt’s severe
family problems, depression and the multiple physical problems
due to pain in her back, herniated discs, and shoulder pain.

Drs. Young and Niazi continued as treating
physicians. In an office note dated June 20, 1994, Dr. Niazi
recorded that Bobbitt is very upset; she is in physical pain; she
feels like her neurosurgeon is not paying enough attention to her
problem; and he cannot operate upon her back and she wants
another opinion. Bobbitt asked Dr. Niazi for the names of some
orthopedic surgeons. The record does not reflect that Dr. Niazi
gave Bobbitt any names.

Bobbitt continued to have regular visits with Dr.
Niazi. His office notes on August 8, 1994, indicate Bobbitt is
depressed and has pain. Bobbitt stated she wanted to switch over
to another neurosurgeon because she felt she was not getting
enough attention at MCV. Dr. Niazi’s office notes on August 31,
1994, also indicate that Bobbitt is not very happy with her
current neurosurgeon and wants to make a change. At Bobbitt’s
September 12, 1994 visit, Dr. Niazi did not record any complaint
against Dr. Young, and Dr. Niazi reported that Bobbitt was
feeling better. Dr. Niazi noted that Bobbitt was more stable in
mood. Dr. Niazi asked Bobbitt to continue her medications and to
return in one month.

Without any explanation in the record, four days
later on September 16, 1994, Dr. Niazi wrote the following letter
to Dr. Mark deBlois, an orthopedic surgeon, concerning Bobbitt:

The above named is my patient and has asked
to be referred to you for a second opinion of her back
problems. She has already scheduled an appointment with you.
Also, she has asked that after you see her you then refer her
back to her other physician for follow up care.

At the October 10, 1994 session, Dr. Niazi’s
office notes indicate that "[Bobbitt] is going to have
surgery on her back and there is some fear about that but patient
is able to accept it and mostly talked about those feelings in
this session."

The record reflects that Bobbitt was admitted to
Chippenham Medical Center on October 19, 1994, for the taking of
her history and medical examination. On October 24, 1994, Dr.
deBlois operated on Bobbitt for lower back and left leg pain.

On November 7, 1994, Bobbitt again visited Dr.
Niazi. According to his office notes, Bobbitt was very depressed,
anxious, and crying at this visit. She reported she had back
surgery two weeks ago. She reported that she was not feeling any
better and actually had more pain than before the surgery. She
wanted Dr. Niazi to prescribe antibiotics for her because her
husband thought she should have them after back surgery.

To support its argument that Dr. deBlois became
an authorized physician, the commission reasoned:

1. The claimant reconsidered and acquiesced
in Dr. deBlois’s recommendation for surgery.

2. Dr. Niazi’s records indicate that Dr.
Niazi was aware of and consented to the claimant’s decision
to pursue surgery with Dr. deBlois.

3. Therefore, the continued treatment and surgery by Dr.
deBlois was with the knowledge and consent of the authorized
physician.

The record establishes that Dr. Niazi was aware
of and had knowledge that Dr. deBlois was going to perform
surgery upon Bobbitt’s back. On September 16, 1994, Dr. Niazi had
requested a second opinion from Dr. deBlois. On October 10, 1994,
according to Niazi’s office notes, Bobbitt advised him that she
had gone to another doctor and that she was to be operated upon
in two weeks. However, there is nothing in the record to prove
that Dr. Niazi consented to the surgery. Moreover, whether he
consented is totally irrelevant to the issue in this case whether
Dr. deBlois became an authorized physician.

In order to hold an employer liable for medical
expenses, the claimant must prove that the service was causally
related to the industrial accident; that it was necessary; and
that the treating physician made a referral to the patient. Shenandoah
Prods., Inc. v. Whitlock
, 15 Va. App. 207, 211, 421 S.E.2d
483, 485 (1992). Without a referral from an authorized treating
physician, the treatment by an unauthorized physician is not the
responsibility of the employer. Id. at 212, 421 S.E.2d at
485. There are several exceptions to this rule not present in
this case. See Code ?65.2-603(C).

When a claimant changes physicians without prior
authorization of employer, insurance carrier, or commission, he
must pay for the medical treatment rendered by the second
physician. Mitchell v. Anchor Warehouses Inc., 49 O.I.C.
223, 226 (1967); Martin v. Miller & Rhoads, Inc., 34
O.I.C. 19, 20-21 (1952).

Whether Dr. Niazi was aware of, had knowledge of,
or consented to Dr. deBlois’s surgery are irrelevant. The issue
is whether Dr. Niazi referred Bobbitt to Dr. deBlois for
treatment. The effect of such a referral, had one been made,
would have been to divest Dr. Young as the treating physician in
the area of orthopedics and would have produced an intolerable
situation concerning who was responsible for providing necessary
orthopedic services to the claimant. To Dr. Niazi’s good credit,
he did not do this. He requested a second opinion which did not
change the status of anyone. He could use the information
obtained from that opinion to determine if bad orthopedic
practices were the cause of any of the psychiatric problems of
his patient. If so, he could pass that on to the employer,
carrier, or commission for appropriate action.

A simple case will illustrate the fallacy of the
commission’s ruling. If Bobbitt had walked into Dr. Niazi’s
office, as she did here, and told him that she had employed Dr.
deBlois to operate on her back, what should Dr. Niazi’s response
have been? He could have advised her to immediately get
permission for the operation from the employer, the insurance
carrier, or the commission. But, he is not responsible for giving
legal advice and may not have felt competent to do so. He could
have said I approve of that and agree that is the proper thing to
do. This still would not have been a referral, and Dr. Young
would remain the treating physician. Bobbitt had every right to
employ Dr. deBlois to perform the operation. Dr. Niazi had no
right to interfere with Bobbitt’s choice of a physician. The only
difference is that if she chooses an unauthorized physician, she,
not the employer, is responsible for paying for the services
rendered.

When you dissect the majority opinion, it says
that Dr. Niazi consented to the surgery because (1) he never
objected to it; (2) he encouraged Bobbitt to accept surgery; and
(3) he continued to provide psychiatric support to her for the
reasons previously stated. All of these things are irrelevant.
Bobbitt had a right to change physicians at anytime, subject only
to the fact that she would have to pay for the services of an
unauthorized physician if she chose one. The fact that Dr. Niazi
did not object, encouraged Bobbitt to accept it, and continued to
provide psychiatric support do not amount to a referral. There is
a big difference in the meaning of consent and a referral. Again,
I would point out that there is absolutely no evidence in the
record that Dr. Niazi consented to Bobbitt changing to Dr.
deBlois and having the surgery. For the reasons stated, I would
reverse the decision of the commission.

 

FOOTNOTES:

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

 

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