Martinsville City School Bd., etc. v Timothy Myers

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia
MARTINSVILLE CITY SCHOOL BOARD
AND VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION* BY
v. 	Record No. 2291-99-3 	CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 2, 2000
TIMOTHY ALLAN MYERS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Frank K. Friedman (John P. Grove; Charles V.
Mehler, III; Woods, Rogers & Hazlegrove,
P.L.C., on brief), for appellants.
Timothy Allan Myers, pro se.
Martinsville City School Board ("employer") contends the
Workers' Compensation Commission ("commission") erred in
refusing to order a change in Timothy Allan Myers' ("claimant")
treating physician. 	Finding no error, we affirm the
commission's decision.
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). 	"Decisions of the
commission as to questions of fact, if supported by credible
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

evidence, are conclusive and binding on this Court." 	Manassas
Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824,
826 (1991).
Viewed in the light most favorable to claimant, who
prevailed before the commission, credible evidence supports the
commission's finding that employer failed to offer sufficient
justification for a change in claimant's treating physician. 	We
have previously identified several grounds upon which a change
in an employee's treating physician will be ordered:
"inadequate treatment is being rendered; it
appears that treatment is needed by a
specialist in a particular field and is not
being provided; no progress being made in
improvement of the employee's health
condition without any adequate explanation;
conventional modalities of treatment are not
being used; no plan of treatment for
long-term disability cases; and failure to
cooperate with discovery proceedings ordered
by the Commission."
Briggs, 28 Va. App. at 675, 508 S.E.2d at 341 (quoting Powers v.
J.B. Constr. Co., 68 O.I.C. 208, 211 (1989)). 	"Additionally,
when an employer seeks to change claimant's treating physician
because the claimant has made little progress and no treatment
plan has been derived, the employer must identify the
alternative care that should be substituted and must demonstrate
that the suggested care would be more appropriate and
productive." 	Id. (citing Bennett v. Fairfax County Sch. Bd., 74
O.W.C. 1, 4 (1995)).
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In the instant case, the commission found that there were
"fundamental conflicts" between the opinions of Dr. Murray
Joiner and Dr. David Cifu, employer's two experts. 	While Dr.
Joiner recommended "more aggressive evaluation and treatment,"
Dr. Cifu opined that "further evaluations and intensive
interventions for [claimant's] Chronic Pain Syndrome would be
inappropriate." 	Additionally, Dr. Joiner failed to explain how
his recommended plan "would differ from the claimant's present
treatment" and "the claimant has received essentially all of the
treatment and therapy recommended by Dr. Cifu." 	In short,
employer failed to identify a medical treatment program that
would be "more appropriate and productive." 	Briggs, 28 Va. App.
at 675, 508 S.E.2d at 341. 	Claimant's condition is "chronic,"
and the commission found his "lack of improvement to be
understandable." 	Because credible evidence supports these
findings, we affirm the commission's decision.
Affirmed.
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