City of Norfolk v. Tammy Gray

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Beales and O’Brien UNPUBLISHED

Argued at Norfolk, Virginia

CITY OF NORFOLK MEMORANDUM OPINION* BY v. Record No. 1138-16-1 JUDGE ROBERT J. HUMPHREYS FEBRUARY 14, 2017 TAMMY GRAY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Karla J. Soloria; Heather A. Mullen; Office of the City Attorney, on briefs), for appellant. Appellant submitting on briefs.

Adam B. Shall (Taylor Walker, P.C., on brief), for appellee.

The City of Norfolk (“employer”) appeals the June 9, 2016 decision of the Workers’

Compensation Commission (the “Commission”) finding employer liable to pay for surgery and

treatment of Tammy Gray’s (“Gray”) work-related injuries performed by an unauthorized

treating physician. Employer argues it should not be liable to pay for the surgery and treatment

by the new physician because Gray did not establish “adequate grounds to warrant a change in

treating physician,” and because the Commission relied on facts contrary to the evidence when it

determined that a change in Gray’s treating physician was warranted.

“In reviewing a decision of the commission, we view the evidence in the light most

favorable to claimant, the party prevailing below. ‘Decisions of the commission as to questions

of fact, if supported by credible evidence, are conclusive and binding on this Court.’” Starbucks

Coffee Co. v. Shy, 61 Va. App. 229, 238, 734 S.E.2d 638, 688 (2012) (quoting Manassas Ice &

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)). However, the Court

reviews de novo the Commission’s legal determinations. Id.

Employer first argues that there was insufficient evidence “that Dr. Skidmore[, the

authorized physician,] was providing inadequate or medically inappropriate care to [Gray] to

justify a change in authorized treating physicians.” Whether evidence was sufficient to show

that a change in treating physicians was warranted is a question of fact that will not be

overturned if supported by credible evidence. Id.

Code § 65.2-603 requires an employer to provide medical care for an employee injured

on the job. Typically, the injured employee is required to use one of the employer’s authorized

treating physicians; however Code § 65.2-603(C) makes an exception for emergency situations

and for “other good reasons.” Among the “other good reasons” exceptions are circumstances

when a claimant attains medical treatment from a physician before obtaining authorization from

the Commission to do so; in such cases, the employer will be liable to pay for treatment by the

physician

if the employee, without authorization but in good faith, obtains medical treatment different from that provided by employer, and it is determined that the treatment provided by the employer was inadequate treatment for the employee’s condition and the unauthorized treatment received by the claimant was medically reasonable and necessary treatment, the employer should be responsible, notwithstanding the lack of prior approval by the employer.

Shenandoah Products, Inc. v. Whitlock, 15 Va. App. 207, 212, 421 S.E.2d 483, 486 (1992)

(analyzing the “other good reasons” exception of Code § 65.2-603). The Commission correctly

relied upon this authority when it made its decision in this case.

Here, the Commission, as the factfinder, determined that Gray sought medical treatment

from Dr. Mitchell, an unauthorized physician, in good faith. Viewed in the light most favorable

to Gray, the prevailing party below, the record supports the Commission’s conclusion. Credible -2- evidence shows that Gray went to see Dr. Mitchell only after seeing Dr. Skidmore. Dr. Mitchell

treated Gray in the past and was familiar with her medical history, and had even performed a

surgery that successfully alleviated her previous neck pain; thus, it was reasonable for Gray to

believe Dr. Mitchell might have a better or more thorough insight into her spinal issues resulting

from the accident. Further, Gray did not continue seeing both Dr. Skidmore and Dr. Mitchell for

an extended period of time; instead, she saw Dr. Mitchell only twice during her seven-month

treatment with Dr. Skidmore. At multiple appointments with Dr. Skidmore, Dr. Skidmore stated

that Gray’s pain was “a bit of a mystery,” and nothing Dr. Skidmore had done by that point

significantly reduced Gray’s pain. When Gray stopped seeing Dr. Skidmore and went instead to

Dr. Mitchell, it was because she believed Dr. Skidmore did not know what was causing her pain.

Thus, the record supports the holding of the Commission that established that Gray sought out

Dr. Mitchell’s treatment in good faith.

The treatment rendered by Dr. Skidmore was clearly inadequate to treat Gray’s condition.

Dr. Skidmore stated twice that Gray’s pain was a “mystery” to him, and even after multiple

diagnostic tests he could not find an answer. Dr. Skidmore prescribed three different medication

regimens for Gray; the first two regimens were completely ineffective, and the final gave Gray

only “mild improvement.” At no point did Dr. Skidmore show any indication that he would

consider treatments other than medications. In contrast, Dr. Mitchell was familiar with Gray’s

medical history, had previously performed successful neck surgery, and indicated that another

surgery was the only option that could possibly alleviate her pain. Therefore, viewed in the light

most favorable to Gray, sufficient credible evidence established that Dr. Skidmore’s treatment

was inadequate to effectively treat Gray’s condition.

Finally, the unauthorized treatment rendered by Dr. Mitchell was reasonable and

necessary under these circumstances because no other treatment options were effective in

-3- reducing Gray’s pain. Her pain ranged between a seven and a ten on a scale of ten, and

medications prescribed by Dr. Skidmore gave little or no relief. Again, Dr. Mitchell, who

worked with Gray in the past regarding unrelated spinal issues, offered the only possible solution

to Gray’s back pain in this instance. A third doctor, Dr. Mathern, confirmed that no other

options were available to relieve Gray’s pain aside from surgery. Thus, the evidence was

sufficient to prove that Dr. Mitchell’s treatment was reasonable and necessary.

Since there was credible evidence to support a finding that Gray sought unauthorized

medical attention in good faith, Dr. Skidmore’s treatment was inadequate, and Dr. Mitchell’s

treatment was reasonable and necessary, we hold that the Commission did not err in holding

employer liable for payment to Dr. Mitchell. See Whitlock, 15 Va. App. at 212, 421 S.E.2d at

486.

Employer next argues that the Commission erred by considering facts contrary to the

evidence when its opinion presumed that only Dr. Mitchell was able to compare a preand

post-accident MRI, when in reality, both doctors were able to do so. Despite employer’s

argument, the Commission only considered facts that were contained in the record.

Both Dr. Skidmore and Dr. Mitchell were eventually able to compare a pre-accident MRI

with a post-accident MRI; however, it was only Dr. Mitchell who had any insight as to what may

be causing Gray’s pain. Dr. Mitchell, who previously performed a surgery on Gray that was

successful in relieving her pain, recommended surgery that would remove the plate he placed

during the previous surgery and perform an “anterior cervical discectomy and fusion.” Aside

from the surgery, Dr. Mitchell had no other options for Gray except to maintain the status quo.

Dr. Skidmore had approximately seven months in which to compare MRIs and come up with

possible treatment options, but he only ever prescribed medications which were not relieving

Gray’s pain. When Dr. Mitchell was able to compare a preand post-accident MRI, he was able

-4- to point to what could be causing the pain, and consequentially recommended surgery. The facts

merely presented two possible competing theories, and the Commission was not incorrect simply

because it chose one possible theory over the other. “[A] finding by the Commission upon

conflicting facts . . . is conclusive and binding . . ., absent fraud, when such determination is

supported by competent, credible evidence.” City of Portsmouth Sheriff’s Dep’t v. Clark, 30

Va. App. 545, 553, 518 S.E.2d 342, 346 (1999) (quoting C.D.S. Constr. Servs. v. Petrock, 218

Va. 1064, 1070, 243 S.E.2d 236, 240 (1978)). The evidence was sufficient to support a finding

that employer should be held liable to pay for Dr. Mitchell’s treatment of Gray. Thus, the

Commission did not consider facts contrary to the evidence and did not err in that regard.

For the foregoing reasons, we hold that the Commission did not err in finding employer

liable for Gray’s treatment by an unauthorized physician, Dr. Mitchell, and affirm its decision.

Affirmed.

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