The Court of Appeals of Virginia recently affirmed a decision by the state’s Workers’ Compensation Commission that denied a claimant’s petition to change her treating physician where the physician indicated the best type of continuing care would be injection treatments and the claimant refused on the grounds that she didn’t “like needles” [Yahner v. Fire-X Corp., 2019 Va. App. LEXIS 101 (Apr. 30, 2019)]. The Court reviewed the record and found that the Commission’s determination that the physician had provided reasonable and adequate care was adequately supported.
In 2016, claimant, a sales associate, injured her lower back in the course of performing her job duties. She initially chose a physician from the list of ten provided by the employer. After one visit, she asked the employer to allow a change, to which it consented, allowing her to choose another name from the list, Dr. Guinand.
Dr. Guinand diagnosed lumbar radiculopathy as well as sprains and strains of the sacroiliac region of her back. He authorized physical therapy and prescribed muscle relaxers, an anti-inflammatory, and pain medication. In addition, Dr. Guinand discussed injection treatment with the claimant, but she declined to consider it as an option. Dr. Guinand cleared the claimant for light duty in June 2016.
The claimant’s August 2016 MRI scan reflected no disc herniation or stenosis. Dr. Guinand discussed the claimant’s “normal MRI” with her and noted that a reasonable amount of time and treatment had been provided. However, the claimant reported continuing pain. Guinand ordered a functional capacity evaluation (FCE) and allowed her to continue physical therapy in the interim.
Claimant’s FCE was conducted by a physical therapist and orthopedic clinical specialist. The evaluator concluded that claimant did not sufficiently physically exert herself for purposes of the test. He also questioned the reliability and accuracy of her reports of pain and disability. The evaluator ultimately concluded that the claimant was able to return to full duty work.
Dr. Guinand reviewed the FCE report, noted that claimant had undergone 37 physical therapy sessions, concluded that claimant was no longer making significant progress, and again offered sacroiliac injection treatments, which claimant again declined. Dr. Guinand discharged claimant and approved her to return to work without restrictions.
Claimant sought a change in physicians, indicating, inter alia, that she didn’t “like needles.” She saw an orthopedist, Dr. Wardell, on the advise of her primary care doctor. She sought to have Dr. Wardell designated as her treating physician.
Deputy Commissioner’s Decision
After hearing the case, the deputy commissioner found that Dr. Guinand’s care was adequate. Consequently, the deputy commissioner concluded that the claimant failed to prove that the circumstances warranted a change of treating physician from Dr. Guinand to Dr. Wardell and held that the employer was not financially responsible for the unauthorized treatment that the claimant received from Wardell. The Commission unanimously affirmed and claimant appealed.
The appellate court noted that while the employer was required to provide the injured worker with a list of at least three physicians, it had provided a list of ten. It observed that claimant’s injury improved significantly under Guinand’s care, but ultimately her progress with him plateaued. He repeatedly recommended sacroliac injection treatment, but the claimant rejected it because she did not “like needles.”
The court stressed that the record did not support her claim that she had been discharged Dr. Guinand. Rather, the medical record showed that he continued to recommend injections as the only remaining treatment option and did not schedule further follow up appointments with her due to her refusal to consider them. The Court concluded that the Commission’s finding that Dr. Guinand provided the claimant with adequate medical treatment was supported by credible evidence. She had failed to meet her burden of proving that circumstances warranted a change in treating physician.