Virginia: Employee’s Refusal of Second Knee Surgery Justified

On Tuesday, a Virginia appellate court affirmed a decision of the state’s Workers’ Compensation Commission that reinstated disability benefits to a convenience store employee who refused to undergo recommended surgery–a Fulkerson osteotomy–in order to relieve knee pain and allow greater mobility [7-Eleven v. Fore, 2013 Va. App. LEXIS 93 (Mar. 26, 2013)].  

When the employee continued to have knee pain after initial surgery, her surgeon recommended a Fulkerson osteotomy as “the only reasonable option” to alleviate claimant’s knee pain. He later repeated the recommendation, indicating to the employee that abundant literature supported the treatment regime. The employee refused to undergo the surgery, indicating the surgery hurt and was not guaranteed to make the pain better. The employer filed an application to suspend benefits, alleging that the employee unjustifiably refused medical treatment. The deputy commissioner granted the employer’s application and suspended benefits. The commission reversed and reinstated compensation benefits, finding that the employee was justified in refusing to undergo a second surgery.

The appellate court agreed with the commission. Initially the court observed that the commission was not required to accept a claimant’s bare fear of a particular medical treatment as sufficient justification for refusing it. The court noted, however, that as a result of the first surgery, the employee suffered extreme pain that left her debilitated for a week. After having this painful experience, she was informed that she would have to undergo a second surgery that her treating physician described as “brutal.” The court indicated that although the osteotomy was “frequently” used to treat knee injuries such as the employee’s, “[t]he dispositive question is not whether the test was justified in [the treating physician’s] professional opinion, or even from an objective medical point of view” [R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 213, 390 S.E.2d 788, 789, 6 Va. Law Rep. 1997 (1990) (10 Va. App. at 213, 390 S.E.2d at 789)]. Rather, the test required the commission to evaluate the evidence “from the viewpoint of the patient.”

The court added that while the lack of a guarantee would not automatically entitle a claimant to refuse a procedure, the circumstances in this case elevated the employee’s concerns into a justifiable refusal. The evidence established the employee’s “genuine fear” and supported the commission’s factual finding that she was justified in refusing the osteotomy.

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