Schwab Construction, et al. v Bret Duane McCarter

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Fitzpatrick, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
SCHWAB CONSTRUCTION
AND
CINCINNATI INSURANCE COMPANY 	OPINION BY
JUDGE CHARLES H. DUFF
v. 	Record No. 2561-96-4 	JUNE 24, 1997
BRET DUANE McCARTER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William E. Glover (Glover & Dahnk, on
briefs), for appellants.
Peter J. Jones for appellee.
Schwab Construction and its insurer (collectively
"employer") contend the Workers' Compensation Commission
("commission") erred in finding that Bret Duane McCarter
("claimant") justifiably refused medical treatment directed by
Dr. Neil Kahanovitz. 	Pursuant to Rule 5A:21(b), claimant
presents the additional question of whether the commission erred
in ordering him to select a new physician from a panel offered by
employer.
"Following established principles, we review the evidence in
the light most favorable to the prevailing party." 	R.G. Moore
Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). 	"Factual findings of the commission that are supported
by credible evidence are conclusive and binding upon this Court
on appeal." 	Southern Iron Works, Inc. v. Wallace, 16 Va. App.
131, 134, 428 S.E.2d 32, 34 (1993).

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I.
Claimant sustained a compensable injury to his neck and back
on November 6, 1992. 	He selected Dr. Donald MacNay as his
primary treating physician on February 3, 1993. 	In approximately
November 1994, claimant's attorney and employer agreed that Dr.
Neil Kahanovitz would become claimant's new treating physician.
Claimant, however, never considered Dr. Kahanovitz to be his
treating physician and instead viewed him as a surgical consult.
Claimant saw Dr. Kahanovitz on three occasions: 	November 3,
1994, December 19, 1994, and March 16, 1995. 	On December 19,
1994, Dr. Kahanovitz advised claimant that he was not a candidate
for surgery or physical therapy. 	On March 16, 1995, he provided
claimant with the following "To Whom it May Concern" letter:
Please be advised that Mr. Bret McCarter has
been under my care since November 3, 1994.
The patient was seen in my office today and
upon evaluation Mr. McCarter does not need
surgery. 	Since the patient lives in Manassas
he should be referred back to Dr. Macmay
[sic] for treatment of his chronic back pain.
If you have any questions or concerns, feel
free to call my office.
At that point, Dr. Kahanovitz considered himself to have released
claimant from his care, and claimant considered Dr. MacNay to be
his treating physician. 	Claimant subsequently saw Dr. MacNay on
May 22, June 21, August 8, and September 9, 1995.
Claimant became concerned when employer made statements to
him to the effect that he should be receiving detoxification
treatment. 	Dr. Kahanovitz had never told claimant that he needed

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such treatment. 	On July 17, 1995, claimant called Dr. Kahanovitz
for clarification. 	During that conversation, claimant did not
ask Dr. Kahanovitz for a referral to another treating physician.
Despite the March 16 letter of referral, Dr. Kahanovitz
continued to maintain contact with employer. 	On March 23, 1995,
he advised the rehabilitation specialist retained by employer
that claimant was a suitable candidate for a combined pain
management and detoxification program offered through Prince
William Hospital. 	He advised employer's claims specialist John
Crow on July 17, 1995, however, that claimant appeared to be
accomplishing detoxification under the guidance of Dr. MacNay and
no longer needed that treatment through Prince William Hospital.
Dr. Kahanovitz further advised Crow on July 17 that claimant
was requesting a referral to another treating physician. 	In
fact, claimant was satisfied with Dr. MacNay and had not
requested a referral. 	On October 23, 1995, Dr. Kahanovitz again
notified Crow that claimant should be offered a new treating
physician. 	He wrote that "unless Dr. MacNay has a specific
detoxification program designed to eliminate all narcotic
medications from the patient's treatment program, I would
strongly recommend that someone else be picked from that
[geographic] area."
On July 26, 1995, Crow directed claimant to choose a new
treating physician from a panel of three to be offered by
employer. 	Claimant refused, asserting that he had been referred

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back to Dr. MacNay by Dr. Kahanovitz on March 16, 1995, and,
therefore, neither employer nor Dr. Kahanovitz could compel him
to choose a new physician. 	Employer responded by filing the
application that is the source of this appeal.
Code § 65.2-603(B) provides for the suspension of benefits
if a claimant unjustifiably refuses medical treatment. 	"Once a
physician is selected, it is well settled that an employee who is
referred for additional medical services by the treating
physician must accept the medical service or forfeit compensation
for as long as the refusal persists." 	Biafore v. Kitchin
Equipment Co., 18 Va. App. 474, 479, 445 S.E.2d 496, 498 (1994).
In such a case, "[t]he question is not whether the recommended
procedure was justified, but whether the patient's refusal to
submit to it was justified. 	The matter of justification must be
considered from the viewpoint of the patient and in light of the
information which was available to him." 	Holland v. Virginia
Bridge Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867,
868 (1990).
"Medical management of the employee is not to be directed by
the employer. 	An employer can require an employee to select an
attending physician from its panel of three, but only an
attending physician or the [Workers' Compensation] Commission may
require an employee to see another physician." 	Richmond Memorial
Hospital v. Allen, 3 Va. App. 314, 318, 349 S.E.2d 419, 422
(1986).

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The commission found that claimant reasonably believed that
Dr. MacNay was his treating physician. 	That finding is supported
by claimant's testimony and Dr. Kahanovitz's March 16, 1995
letter. 	Because that finding is supported by credible evidence,
we will not disturb it on appeal. 	Accordingly, we find that
claimant was justified in refusing to choose another physician
despite Dr. Kahanovitz's recommendation. 	At the time that
recommendation was made, neither employer nor Dr. Kahanovitz
could compel claimant to change treating physicians.
We therefore hold that the commission did not err in finding
that claimant reasonably believed Dr. MacNay was his treating
physician. 	We further hold that claimant did not unjustifiably
refuse employer's offer to choose a new physician. 	For these
reasons, we affirm that portion of the commission's decision.
II.
As an additional question raised pursuant to Rule 5A:21(b),
claimant contends that the commission erred when it ordered him
to select a new physician from a panel offered by employer after
finding that he had not unjustifiably refused medical treatment.
We agree with claimant and find that he was not afforded proper
notice on this issue.
Employer's November 14, 1995, application for hearing
asserted a change of condition based on claimant's unjustifiable
refusal "to submit to medical care." 	In its letter in support of
the application, employer cited claimant's refusal to select a

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new treating physician as recommended by Dr. Kahanovitz.
Employer contended the refusal was unjustified because Dr.
Kahanovitz was claimant's primary treating physician. 	The only
remedy sought by employer was termination of benefits. 	The
commission's Notice of Hearing advised only that the subject of
the hearing would be the application filed on November 14, 1995.
The deputy commissioner held that Dr. Kahanovitz was
claimant's treating physician at the time the recommendation to
change physicians was made. 	The deputy commissioner then
concluded that claimant's refusal to do so was unjustified. 	The
full commission reversed the deputy commissioner, finding that
claimant reasonably believed that Dr. MacNay was his treating
physician. 	Nevertheless, the commission ordered claimant to
choose a new physician from a panel offered by employer "given
the failure of Dr. MacNay's regimen to bring about improvement in
the claimant's condition after several years of intensive
treatment."
"Pleading requirements in administrative proceedings before
the [Workers' Compensation] Commission are traditionally more
informal than judicial proceedings." 	Sergio's Pizza v. Sconcini,
1 Va. App. 370, 376, 339 S.E.2d 204, 207 (1986). 	"[R]igid or
technical rules of pleading . . . shall not apply so long as the
procedures adopted protect the substantial rights of the
parties." 	Id. 	"The procedure utilized must afford the parties
minimal due process safeguards." 	Id. 	"'An elementary and

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fundamental requirement of due process in any proceeding which is
to be accorded any finality is notice reasonably calculated,
under all circumstances, to apprise interested parties of the
pendency of the action and to afford them an opportunity to
present their objections.'" 	Oak Hill Nursing Home, Inc. v. Back,
221 Va. 411, 417, 270 S.E.2d 723, 726 (1980) (quoting Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
In Sergio's Pizza, we held that an employer had not been
afforded proper notice where the commission, on its own motion,
modified the claimant's petition from that of a new occupational
injury to a change in condition application. 	See Sergio's Pizza,
1 Va. App. at 375, 339 S.E.2d at 208. 	The claimant had sustained
a compensable burn injury to her right hand on July 19, 1984.
While hospitalized, she also complained of pain in her right
elbow. 	After returning to work, the claimant filed an
application for hearing regarding the elbow injury, citing August
29, 1984 as the date of injury. 	The commission initially
regarded the August 29 claim as a new application for benefits
and assigned it a separate file number. 	See id. at 373-74, 339
S.E.2d 206.
The deputy commissioner did not consolidate this new claim
with that established following the July 19 injury and "defined
the issue as being the determination of the employee's claim of
'occupational disease attributable to her employment with a
communication date of August 29, 1984.'" 	Id. at 374, 339 S.E.2d

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at 206. 	At the hearing "the record [did not] reflect that
consideration would be or was given to the alternative position
that [claimant's] 'tennis elbow' was a compensable aggravation,
progression, or complication of the earlier burn injury." 	Id.
The deputy commissioner ruled that the elbow injury was not an
occupational disease related to the claimant's employment but
expressly reserved judgment about whether it was a compensable
aggravation, progression, or complication of the July 19 injury.
See id. at 374-75, 339 S.E.2d at 206-07.
On appeal, the full commission amended the claimant's claim
of a new injury to an application on a change of condition and
ruled that the claimant's elbow condition was a compensable
complication of the earlier burn injury. 	We reversed, holding
the commission gave the employer inadequate notice that the
matter might be considered as a change of condition application
instead of an application on a new injury. 	See id. at 376, 339
S.E.2d at 208. 	The deputy commissioner had specifically framed
the scope of the proceeding, and the evidence did not plainly put
the employer on notice that the matter might be adjudicated as a
change of condition. 	See id. 	Cf. Back, 221 Va. at 416, 270
S.E.2d at 726-27. 	We reasoned that "[e]ven if we assume that the
medical evidence presented should have alerted the employer to
the possibility of a connection, the procedure employed precluded
an adequate opportunity to defend the claim since it was
litigated only as an occupational disease." 	Sergio's Pizza, 1

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Va. App. at 376, 339 S.E.2d at 208.
Here, claimant was put on notice that his refusal to change
physicians was to be considered by the commission in the context
of employer's charge of unjustified refusal of medical treatment.
However, he was not adequately provided notice that the
commission might, sua sponte, order him to change physicians if
his refusal to do so when requested by the employer was
justified. 	This was not a situation where the circumstances
plainly put claimant on notice that this specific issue would be
addressed. 	See Back, 221 Va. at 416, 270 S.E.2d at 726-27. 	Nor
was this a situation where the commission merely redefined the
issues but utilized the same facts and analysis as the deputy
commissioner to reach the same result. 	See Georgia Pacific Corp.
v. Dancy, 17 Va. App. 128, 132-33, 435 S.E.2d 898, 900-01 (1993).
The commission also did not provide claimant an opportunity to
present additional evidence to address its concerns regarding the
efficacy of Dr. MacNay's treatment. 	See Sergio's Pizza, 1 Va.
App. at 377, 339 S.E.2d at 208.
The only relief employer sought in its application was the
termination of benefits. 	See Rules of the Workers' Compensation
Commission 1.4(A) ("An employer's application for hearing shall
be in writing and shall state the grounds and the relief sought."
(Emphasis added.)) 	Employer could have, but did not, ask the
commission in its application, in the alternative, to compel
claimant to change physicians. 	See Potts v. Mathieson Alkali

10
Works, 165 Va. 196, 207, 181 S.E. 521, 525 (1935) ("No court can
base its decree upon facts not alleged, nor render its judgment
upon a right, however meritorious, which has not been pleaded and
claimed.").
The primary issue of contention for both parties was not the
efficacy of Dr. MacNay's treatment but whether Dr. Kahanovitz was
claimant's treating physician at the time the referral was made.
The deputy commissioner made no specific ruling regarding the
effectiveness of Dr. MacNay's treatment. 	Further, in an
unjustified refusal of medical treatment case, the commission
must undertake a different analysis than would be utilized if it
were seeking to compel a change in physicians. 	The test employed
in the former is a subjective one--whether the claimant acted
reasonably in refusing the medical treatment. 	On the other hand,
in determining whether the claimant should be ordered to change
physicians, the commission focuses more upon objective factors.
We are cognizant of the language of Code § 65.2-603(B) which
provides, in part, "[i]n any such case the Commission may order a
change in the medical or hospital service or vocational
rehabilitation services." 	We hold, however, that this language
merely enables the commission to order a change in physicians as
part of a remedy where the refusal is unjustified. 	The
commission may not, unless the parties are given proper notice,
compel a claimant to change physicians under this provision where
it has not found an unjustified refusal of medical treatment.

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Such an interpretation is especially appropriate where, as here,
the primary defense against the allegation is collateral to the
quality of treatment being afforded claimant by Dr. MacNay.
Accordingly, we hold that the commission erred in ordering
claimant to select a physician from a panel offered by employer
without first providing him an opportunity to defend against the
change for the reasons found by the commission. 	Therefore, we
reverse that portion of the commission's decision and remand for
such further actions as the parties to the proceeding and the
commission may elect.
Affirmed in part,
reversed and remanded
in part.