Ralph Allen Frye v Reynolds Metals Co., et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
RALPH ALLEN FRYE MEMORANDUM OPINION*
v. 	Record No. 0826-98-3 	PER CURIAM
AUGUST 25, 1998
REYNOLDS METALS COMPANY AND
INDEMNITY INSURANCE COMPANY
OF NORTH AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Rhonda L. Overstreet; Lumsden, Overstreet &
Hansen, on brief), for appellant.
(Scott C. Ford; Joshua M. Wulf; Midkiff &
Hiner, on brief), for appellees.
Ralph Allen Frye contends that the Workers' Compensation
Commission erred in finding that his employer, Reynolds Metals
Company, was not responsible for the cost of medical treatment
provided to Frye by Dr. Pierce Nelson, a neuropsychiatrist. 	Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. 	Accordingly, we summarily
affirm the commission's decision. 	Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 	In
ruling that employer was not responsible for the cost of Dr.
Nelson's treatment, the commission found as follows:
It is uncontradicted that [Frye] came under
the care of Dr. Nelson as a result of a
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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referral from an attorney who was handling a
Social Security matter. 	Dr. Nelson did not
examine [Frye] in the context of the worker's
compensation case. 	There is no evidence in
the record that any treating physician has
suggested, indicated, or otherwise referred
[Frye] for any psychiatric treatment. 	With
this evidence before us, we cannot find that
the treatment by Dr. Nelson is authorized.
It is well settled that an employer is not
responsible for unauthorized treatment. 	This
is particularly true in the current case
where the treating physicians have failed to
indicate the necessity of such treatment and
[Frye] has failed to seek timely
authorization from the carrier or the
Commission.
These findings are amply supported by the record.
"Without a referral from an authorized treating physician,
Code § 65.2-603(C) provides for treatment by an unauthorized
physician in an 'emergency' or 'for other good reason.'"
Shenandoah Prods., Inc. v. Whitlock, 15 Va. App. 207, 212, 421
S.E.2d 483, 485 (1992).
[I]f the employee, without authorization but
in good faith, obtains medical treatment
different from that provided by the 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.
Id. at 212, 421 S.E.2d at 486.
Frye did not present evidence to prove that he sought the
unauthorized treatment from Dr. Nelson in good faith, that the
treating physicians rendered inadequate treatment, or that the

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unauthorized treatment was medically reasonable and necessary.
As fact finder, the commission was entitled to accept the opinion
of Dr. Jim Brasfield, an authorized treating physician, who
discerned no evidence of psychiatric problems during his
treatment of Frye. 	In addition, the commission was entitled to
reject the contrary opinion of Dr. Nelson, who did not begin
treating Frye until approximately two years after his industrial
accident. 	See Hungerford Mechanical Corp. v. Hobson, 11 Va. App.
675, 677, 401 S.E.2d 213, 215 (1991).
Frye's argument that the commission was bound by dicta
contained in a footnote to its January 11, 1996 review opinion is
meritless. 	As the commission correctly determined, "[t]he issue
of causal relationship between Dr. Nelson's treatment was not
then before the Commission and has not previously been
adjudicated."
Based upon this record, we cannot say as a matter of law
that the commission erred in concluding that the employer was not
responsible for the cost of Dr. Nelson's unauthorized treatment.
For the reasons stated, we affirm the commission's decision.
Affirmed.