COURT OF APPEALS OF VIRGINIA
Judges Baker, Elder and Fitzpatrick
WILLIAMSBURG SOAP & CANDLE COMPANY
CONTINENTAL INSURANCE COMPANY
Record No. 0779-97-1
DEBRA J. EAMES
MEMORANDUM OPINION *
AUGUST 5, 1997
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Roya Palmer; Law Offices of Richard A.
Hobson, on brief), for appellants.
(Byron A. Adams, on brief), for appellee.
Williamsburg Soap & Candle and its insurer (hereinafter
collectively referred to as "employer") appeal a decision of the
Workers' Compensation Commission (commission) refusing to suspend
Debra J. Eames' (claimant) award of workers' compensation
Employer contends that the commission erred in finding
that claimant did not unjustifiably refuse medical treatment from
Dr. Lisa B. Barr.
Finding no error, we affirm the commission's
On March 28, 1995, claimant sustained a compensable right
shoulder and arm injury.
On or about February 29, 1996,
claimant's treating physician, Dr. Jeffrey D. Moore, an
orthopedic surgeon, referred claimant to Dr. Barr, a physiatrist.
Claimant first treated with Dr. Barr on March 29, 1996.
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Claimant described that treatment as very painful and the
examination as barbaric.
Claimant testified that Dr. Barr
climbed on top of the examining table, took claimant's right arm
and placed it in the middle of claimant's back, and then put her
knee on claimant's back and yanked on claimant's right shoulder.
Dr. Barr then subjected claimant to at least four cortisone
shots to her back, shoulder, and arm, even though claimant was in
tears and had told Dr. Barr that such treatment had not provided
her with relief in the past.
Dr. Barr wanted to place two more
shots under claimant's armpit, but claimant refused.
shots, claimant could not move her arm.
Dr. Barr instructed
claimant that she could return to work the following Monday and
gave her a prescription for medication.
After the March 29, 1996 treatment, claimant contacted Dr.
Moore, who agreed that she would not be required to continue
treating with Dr. Barr.
Claimant testified that Dr. Moore gave
her permission to return to Dr. Kevin R. Bedell, her family
On April 5, 1996, Dr. Bedell noted that claimant "was
last seen by Dr. Barr, who gave her trigger point injections
which created more pain from her aspect."
Dr. Bedell recommended
a referral to a pain clinic at the Williamsburg Community
Hospital for myofascial manipulation rather than injections.
April 10, 1996, claimant treated with Dr. Mark W. Newman at the
Dr. Newman administered manipulative treatment and
On April 12, 1996, Dr. Bedell reported that
claimant "is feeling markedly better, still has some pain, but is
On April 12, 1996, claimant returned to Dr. Barr due to a
previously scheduled follow-up appointment.
At that time,
claimant informed Dr. Barr that her treatment had caused claimant
Claimant did not receive any treatment from Dr.
Barr on April 12, 1996.
At that time, Dr. Barr noted that
claimant was "basically not interested in continuing medical care
under my direction."
Dr. Barr did not note on April 12, 1996
that she had scheduled any follow-up appointment for claimant.
In addition, claimant testified that no such appointment was
Employer then scheduled an appointment for claimant
with Dr. Barr on May 3, 1996.
Claimant did not attend that
On May 17, 1996, claimant returned to Dr. Moore.
Dr. Moore noted that he did not object to claimant discontinuing
her treatment with Dr. Barr and continuing her treatment with Dr.
The relevant question is not whether the procedures employed
by Dr. Barr were justified, but whether claimant's refusal to
submit to further treatment by Dr. Barr was justified.
Holland v. Virginia Bridge & Structures, Inc., 10 Va. App. 660,
662, 394 S.E.2d 867, 868 (1990).
"The matter of justification
must be considered from the viewpoint of the patient and in light
of the information which was available to [her]."
Claimant's uncontradicted testimony that she was subjected
to an unnecessarily painful examination and treatment on March
29, 1996 by Dr. Barr, which worsened her condition, supports the
commission's finding that claimant was justified in seeking
alternative treatment from Dr. Bedell. 1
Dr. Bedell's treatment
proved productive and provided claimant with pain relief.
Furthermore, claimant's failure to attend the May 3, 1996
appointment with Dr. Barr is of no moment.
As the commission
correctly noted, the treating physician, not the employer or its
representative, directs the medical management of the employee.
Given the circumstances in this case, we find that the commission
did not err in holding that claimant did not refuse medical
treatment without justification.
For these reasons, we affirm the commission's decision.
Employer incorrectly asserts that the commission found Dr.
Bedell not to be an authorized treating physician. To the
contrary, the commission vacated the deputy commissioner's
finding that Dr. Bedell was a valid referral from Dr. Moore
because employer did not have notice that the issue of a change
in treating physicians would be decided by the deputy
commissioner. However, the commission noted that the employer
does not determine the medical treatment. Rather, medical
management of the employee is to be directed by the treating
physician. See Jensen Press v. Ale, 1 Va. App. 153, 158, 336
S.E.2d 522, 525 (1985).