COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
SHAW JEWELERS, ET AL.
MEMORANDUM OPINION* BY
v. Record No. 2320-96-2 JUDGE LARRY G. ELDER
MARCH 18, 1997
BEULAH ALLENE SQUIERS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Mark M. Caldwell, III (Ralph L. Whitt, Jr.;
Sands, Anderson, Marks & Miller, on brief),
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
*Pursuant to Code ? 17-116.010 this opinion is not
designated for publication.
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.
A. Through his office.
Q. Through his office?
Q. Did you [ask] Doctor Allen to refer you to Doctor
A. They did through the — by telephone.
Q. Did you ask Doctor Allen to refer you to Doctor
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’
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
For the foregoing reasons, we affirm the commission’s award
of medical benefits and temporary partial disability benefits.