Court: No ‘good faith exception’ to workers’ compensation requirement

There is no “good faith exception” when it comes to hand-delivering a list of employer-approved doctors to an employee with compensable injuries as required by the Workers Compensation Act, the Court of Appeals of Virginia has held.

The Virginia Workers’ Compensation Commission agreed with the employer’s argument that it shouldn’t be responsible for the employee’s treatment by the unauthorized doctor because they made a good faith attempt to deliver the list of their approved doctors.

Court of Appeals Chief Judge Marla Graff Decker disagreed.

“The Commission erred in its interpretation of Code § 62.5-603,” she wrote. “Under the statute, the employer’s good faith effort does not excuse it from its obligation to provide a panel of physicians to the employee.”

The appellate court remanded the case for reconsideration of the employee’s period of disability.

Judges Richard Y. AtLee Jr. and Frank K. Friedman joined Decker’s opinion in Jalloh v. S.W. Rodgers, et al. (VLW 023-7-126).

Dueling diagnoses

While working for S.W. Rodgers in June 2021, Abu Jalloh fell off a ladder and injured his neck, back and shoulder. He reported the incident to his supervisor, went home and didn’t return to work.

S.W. Rodgers treated Jalloh’s continued absences like a resignation.

Four days after the fall, Wayne Haight, the company’s safety officer, called Jalloh about medical treatment. When Jalloh said he planned to see his own doctor, Haight decided to bring copies of a panel list of employer-approved physicians to Jalloh’s home.

Jalloh wasn’t home, so Haight spoke to his wife. When she called Jalloh, Haight brought up the list. Jalloh demanded that Haight leave and refused to meet with him. Haight didn’t leave a list at Jalloh’s house. Nobody from S.W. Rodgers sent a list to Jalloh.

The next day, Jalloh’s orthopedic surgeon, Dr. Mehrdad Malek, diagnosed him with various sprains, strains and a contusion. Malek referred Jalloh to physical therapy and ordered that he not return to work until December 2021.

At the company’s request, Jalloh was evaluated by Dr. Paymaun Lotfi in October 2021, who gave similar diagnosis as Malek. Nonetheless, Lotfi concluded that Jalloh could return to medium-duty work.

Jalloh sought workers’ compensation benefits and the company didn’t dispute that he suffered compensable injuries. Instead, they argued that Jalloh wasn’t authorized to see his own doctor and that he wasn’t disabled to the extent alleged.

The Workers’ Compensation Commission’s deputy commissioner decided that S.W. Rodgers was responsible for Malek’s treatment because it failed to provide Jalloh with a panel of physicians and that Jalloh was entitled to continuing temporary total disability benefits, based on Malek’s opinion. The company requested further review.

In a split decision, the commission reversed the deputy commissioner’s decision, holding that “the employer made a good faith effort to present the claimant with a [physicians] panel, which the claimant effectively refused by engaging in a course of conduct designed to frustrate the employer’s effort to provide a panel.”

Having found that S.W. Rodgers wasn’t responsible for Jalloh’s unauthorized treatment, the commission adopted Lotfi’s opinion that Jalloh wasn’t entitled to continuing disability benefits.

Jalloh appealed.

No good faith exception

Jollah claimed the commission improperly applied a good faith exception to excuse S.W. Rodgers’ failure to provide him the statutory physicians list; denial of his disability claim was further error.

Decker said there are specific requirements for the purposes of workers’ compensation.

“When an employer must furnish medical care for a compensable injury suffered by an employee, it is required to provide a ‘panel of at least three physicians selected by the employer’ from which the employee can choose the treating physician,” the judge wrote, citing Code § 65.2-603.

If the employer fails or refuses to give the list, the injured employee can select his own treating physician and seek workers’ compensation benefits. And here, the judge said, there was no question that S.W. Rodgers failed to give Jalloh a list of physicians.

“There is no evidence that the employer sent it by regular mail or email to the claimant or his attorney, nor is there evidence that Haight left it at the claimant’s house when he was there,” Decker pointed out. “The Commission did not make a factual finding that a panel of physicians was provided. Instead, it found that the employer ‘attempted … to provide’ the claimant with a panel.”

The issue to be resolved on appeal, therefore, was if a “good faith effort” is enough to satisfy the statutory obligation under Code § 65.2-603 to provide a panel of physicians to an injured employee. Decker added that employers must meet certain objective standards.

“An employer’s subjective intent to comply with the statute is simply not relevant,” the judge explained. “The express and clear wording of the statute does not permit an employer to make only a good faith effort to provide a panel of physicians to the employee.”

Decker found it helpful to look to other parts of the statute that use the phrase “good faith.”

“These examples illustrate that the General Assembly can and does allow for good faith exceptions when it intends to do so. And, in fact, it did so in the very act at issue here,” the judge wrote. “Consequently, the omission of a good faith provision from Code § 65.2-603 controls the outcome of this case.”

Decker acknowledged that no evidence pointed to S.W. Rodgers’ intention to circumvent a statutory obligation.

“Nonetheless, the fact that Haight attempted to deliver a copy of the panel of physicians but felt that his efforts were obstructed by the claimant did not relieve the employer of its obligation to provide a panel list to the claimant,” the judge wrote. “There were legitimate, straight-forward ways in which the employer could have complied with the requirement to provide a panel list, despite the claimant’s behavior.”

As such, the judge declined to “‘judicially create a good faith exception or other savings provision to the statute when the legislature has clearly expressed itself’ by not doing so.”

Decker concluded that, because Jalloh didn’t receive the list, he was entitled to seek treatment from his own doctor.

Attorney comments

Fairfax attorney Andrew S. Kasmer represented Jalloh. He told Virginia Lawyers Weekly his client has returned to light duty at S.W. Rodgers where he transports people with disabilities.

The attorney met with Jalloh soon after the accident when he didn’t have a panel, so he sent his client to Dr. Malek.

“I’ve been doing this for 25, 26 years and never have I heard of a safety man going to an employee’s house several days after an accident to drop off a panel,” Kasmer noted.

He added that “it’s a shame that the full Commission decided to try to carve out an exception in the statute because they were upset that my client wasn’t very nice to his employer.”

Meanwhile, Kathryn Lea Harman, of Semmes, Bowen & Semmes in Vienna, said her client’s good faith effort to comply with the statute was frustrated by Jalloh. Harman said her client knew that Jalloh planned to start medical treatment soon, hence the urgency to give him the panel.

“Even the Court of Appeals acknowledged in a footnote that Jalloh had been less than cooperative,” she said.

Harman advised employers’ attorneys to send the panel by certified mail as soon as possible after an accident.

“Employers are supposed to have a reasonable time in which to give the panel, but that time is getting shorter and shorter,” she cautioned.