Food Lion, LLC and Delhaize America, Inc. v. Quamaine A. Wright

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Clements, Kelsey and Beales
Argued at Richmond, Virginia
FOOD LION, LLC AND
DELHAIZE AMERICA, INC.
v. 	Record No. 0789-08-2 	OPINION BY
JUDGE D. ARTHUR KELSEY
QWAMAINE A. WRIGHT 	DECEMBER 2, 2008
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
P. Jason Cording (William B. Pierce, Jr.; Dov M. Szego; William B.
Pierce & Associates, PLLC, on briefs), for appellants.
Craig B. Davis (Emroch & Kilduff, LLP, on brief), for appellee.
In a proceeding before the Workers’ Compensation Commission, Qwamaine A. Wright
requested a change in his treating physician. After the commission granted the request, the
employer appealed. We affirm.
I.
Wright, a teenager working at a grocery store, fell at work and sustained injuries to his
chin, elbows, and wrists. He initially received medical care from a family practitioner who
sutured his chin and recommended that Wright see an orthopedic specialist. Wright’s mother
called the employer and asked for a referral. The employer’s claims adjuster provided a panel of
three physicians, which included two orthopedic surgeons and a plastic surgeon.
At the mother’s request, the adjuster scheduled an appointment with Dr. Vipool K.
Goradia, one of the two orthopedic surgeons. The adjuster advised Wright’s mother that another
physician would be provided if Wright or his mother became dissatisfied with Dr. Goradia’s
care. The claims adjuster placed no time limitation on her offer to replace Dr. Goradia.

Not long after Dr. Goradia began treating Wright, his mother became dissatisfied with the
doctor’s care and demeanor. Wright thereafter filed a motion requesting the commission to order
the employer to provide a replacement panel of physicians. The first panel, Wright argued, was
defective because one of the three physicians was not an orthopedic specialist. Wright also
pointed out the adjuster had earlier agreed to replace Dr. Goradia upon request. In reply, the
employer argued Wright could not seek to replace Dr. Goradia after submitting to his course of
treatment. The commission disagreed and ordered the employer to provide a new panel of three
orthopedic specialists.
II.
On appeal, the employer argues that the commission erroneously failed to apply the
course-of-treatment doctrine which forbids an employee from changing his treating physician
without a reasonable justification. We disagree.
When an employee enters into a course of treatment with a physician, even in cases
where the employer fails to comply with the requirement to provide a proper panel, “the
employee is not at liberty to change therefrom unless referred by said physician, confronted with
an emergency, or given permission by the employer and/or its insurer or [the] Commission.”
Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App. 120, 128, 384 S.E.2d 333, 338 (1989)
(brackets in original and indirectly quoting Breckenridge v. Marval Poultry Co., 228 Va. 191,
194, 319 S.E.2d 769, 770-71 (1984)); see also Macica v. ARA Services Tidewater Vending, 26
Va. App. 36, 41-42, 492 S.E.2d 843, 846 (1997).1
1 We agree with the commission’s application of this principle to defectively constituted
panels. See Simmons v. Stafford County Sch. Bd., VWC File No. 203-42-59, 2002 Va. Wrk.
Comp. LEXIS 617, *21 (Mar. 25, 2002); Lewis v. Newport News Sch. Bd., VWC File No.
202 08-59, 2001 Va. Wrk. Comp. L EXIS 4499, *7 (Dec. 5, 2001); Daniels v. Ltd. Mgmt. Co.,
VWC File No. 195-31-42, 2001 Va. Wrk. Comp. LEXIS 3948, *4 (Sept. 19, 2001); Bagley v.
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Under the course-of-treatment doctrine, an employee may secure the commission’s
approval of a change in treating physician only upon showing some reasonable justification for
the change, such as:
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; [or] failure to cooperate
with discovery proceedings ordered by the Commission.
Apple Constr. Corp. v. Sexton, 44 Va. App. 458, 461, 605 S.E.2d 351, 352 (2004) (brackets in
original and quoting Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 675, 508 S.E.2d 335, 341
(1998)).
The employer claims Wright did not prove any of these circumstances existed. Perhaps
so, but we fail to see why that matters in this case. Nearly every expression of the course-of-
treatment doctrine has added the qualification that the employee may change treating physicians
when “given permission by the employer” to do so. Breckenridge, 228 Va. at 194, 319 S.E.2d at
771; Macica, 26 Va. App. at 42, 492 S.E.2d at 846; Goodyear Tire & Rubber Co., 9 Va. App. at
128, 384 S.E.2d at 338. When the employer agrees with the requested change in treating
physician, the employee need not demonstrate any further justification for the change. The
employer’s consent — whether viewed as a reasonable justification in and of itself or viewed as
a circumstance mooting the need to prove a reasonable justification — gives the employee an
enforceable expectation that he may change his treating physician if he does so consistent with
the scope of the employer’s consent.
Chippenham Hosp., VWC File No. 197-00-80, 2000 Va. Wrk. Comp. LEXIS 781, *8 (Dec. 13,
2000); Hudson v. Nat’l Health Labs., VWC File No. 153-83-12, 1995 Va. Wrk. Comp. L EXIS
218, *3 -*4 (July 11, 1995).
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Here, the commission found that the employer’s claims adjuster agreed in advance to
accept a change of physician if Wright or his mother became dissatisfied with Dr. Goradia’s
care.2 The adjuster placed no time limitation on this open-ended offer. As factfinder, therefore,
the commission had ample evidence to reject the employer’s argument that the “window of
opportunity on the offer” closed when Wright submitted to a course of treatment with
Dr. Goradia. See Appellant’s Br. at 25. Given our “highly deferential standard of review of
commission factfinding,” Dunnavant v. Newman Tire Co., Inc., 51 Va. App. 252, 258, 656
S.E.2d 431, 434 (2008), we see no reason to second-guess the commission on this issue.
III.
In short, the employer’s unqualified offer authorized Wright to change his treating
physician at his election. The commission did not err in requiring the employer to stand by that
representation.
Affirmed.
2 Because our holding renders it unnecessary to do so, we need not address whether
Wright’s mother had a credible factual basis for her dissatisfaction with Dr. Goradia’s treatment
or demeanor.