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Yahner v. Fire-X Corporation and Commonwealth Contractors Group Self-Insurance Association

Court of Appeals of Virginia

April 30, 2019

ROSE E. YAHNER
v.
FIRE-X CORPORATION AND COMMONWEALTH CONTRACTORS GROUP SELF-INSURANCE ASSOCIATION

          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Raymond L. Hogge, Jr. (Hogge Law, on brief), for appellant.

          J. Brian Slaughter (Taylor Walker, P.C., on brief), for appellees.

          Present: Chief Judge Decker, Judge Alston and Senior Judge Frank Argued by teleconference

          OPINION

          MARLA GRAFF DECKER CHIEF JUDGE.

         Rose Yahner (the claimant) appeals the decision of the Workers' Compensation Commission denying her request for a change in treating physician and her claim for medical benefits for unauthorized treatment. For the following reasons, we conclude that the Commission did not err in determining that the claimant failed to demonstrate either that circumstances warranted a change in her treating physician or that she was justified in seeking unauthorized medical treatment. Consequently, we affirm the Commission's decision.

         I. BACKGROUND[1]

         On May 13, 2016, the claimant worked as a sales associate for Fire-X Corporation (the employer) selling fire suppression products. That day, the claimant injured her lower back while moving a fire extinguisher in the course of performing her job duties.

         The claimant received an award of lifetime medical benefits.[2] Subsequently, she sought a change in her treating physician to Dr. Arthur Wardell and medical benefits covering the treatment provided by him. The employer defended on the grounds that Dr. Richard Guinand was her authorized treating physician and that Wardell's treatment was unauthorized, unreasonable, and unnecessary. At the evidentiary hearing, the deputy commissioner considered evidence concerning the claimant's medical condition and treatment.

         Regarding the treatment that was furnished through the employer, the evidence showed that after the claimant's injury, the employer presented her with a panel of physicians from which to choose. The claimant chose a physician from the panel, but after her initial appointment with him, she asked the employer for a different doctor. The employer allowed the claimant to choose another physician from the panel of ten options. The claimant then chose Dr. Guinand, a spine specialist, as her treating physician.

         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 has 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."

         The claimant's FCE was conducted by a physical therapist and orthopedic clinical specialist. During the FCE, the evaluator believed that the claimant did not sufficiently physically exert herself for purposes of the test. He 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 and made his own independent conclusions, agreeing with the evaluator's "findings." At that time, the claimant had undergone thirty-seven physical therapy sessions. Dr. Guinand concluded that although the claimant had recovered 40% from her injury, she was no longer "making significant progress." He again offered sacroiliac injection treatment, and the claimant again declined. Dr. Guinand believed that she had reached the maximum improvement possible ...


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