                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Elder and Petty
UNPUBLISHED


              Argued by teleconference


              7-ELEVEN AND INDEMNITY INSURANCE
               COMPANY OF NORTH AMERICA
                                                                               MEMORANDUM OPINION * BY
              v.     Record No. 1722-12-2                                        JUDGE LARRY G. ELDER
                                                                                    MARCH 26, 2013
              CAROLYN FORE


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Kathryn Lea Harman (Joseph F. Giordano; Semmes, Bowen &
                               Semmes, P.C., on briefs), for appellants.

                               Thomas J. Schilling (Schilling & Esposito, PLLC, on brief), for
                               appellee.


                     7-Eleven and Indemnity Insurance Company of North America (collectively, employer)

              appeal a decision of the Workers’ Compensation Commission (commission) reinstating disability

              benefits to Carolyn Fore (claimant), contending she unjustifiably refused medical treatment. 1

              Because claimant’s concerns regarding the painful nature of the surgery and the lack of adequate

              assurances of full recovery support the commission’s findings, we affirm the commission’s

              reinstatement of disability benefits.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                      We have consolidated employer’s three assignments of error because each one
              addresses the issue of whether claimant was justified in refusing medical treatment.
                                                  I.

                                         BACKGROUND

       We view the evidence in the light most favorable to claimant, who prevailed below. See

Westmoreland Coal v. Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). So viewed, the

evidence shows that on July 13, 2008, claimant sustained a compensable injury to her right knee

during the course of her employment as an assistant manager for employer. As a result, she

received temporary total disability benefits beginning July 21, 2008. On August 29, 2008,

claimant’s treating physician, Dr. Geoffrey Higgs, performed surgery on claimant’s knee.

Because claimant continued to experience pain, Dr. Higgs recommended a Fulkerson osteotomy

as “the only reasonable option” to alleviate claimant’s knee pain. In a follow-up examination on

June 29, 2010, Dr. Higgs repeated his recommendation to claimant for an osteotomy because an

“abundant amount of literature . . . supports avocation of a Fulkerson osteotomy to decrease the

patient’s symptoms of pain and allow her a higher level of function with flexion activity.”

Claimant, however, refused to schedule an appointment to undergo the osteotomy “[b]ecause

[the surgery] hurts and it’s not guaranteed that it will make [the pain] better.” As a result, the

employer filed an application to suspend claimant’s benefits, alleging that she unjustifiably

refused medical treatment.

       The deputy commissioner granted the employer’s application and suspended claimant’s

benefits. The commission reversed and reinstated compensation benefits, finding that claimant

was justified in refusing to undergo a second surgery. The commission “accept[ed] the

claimant’s testimony as credible and believe[d] that the surgery is quite extensive with

substantive risks.” The commission concluded that claimant’s reluctance to go through with the

surgery was “based on her desire to avoid pain and rehabilitation combined with the possibility




                                                -2-
of an unsuccessful outcome given the results of the first surgery.” On that basis, it held the

refusal to undergo the osteotomy was justified. This appeal followed.

                                                 II.

                                            ANALYSIS

       Employer argues the evidence does not support the commission’s conclusion that

claimant justifiably refused medical treatment because the second surgery was the only option

claimant’s treating physician had recommended that would restore her to working capacity, and

because claimant offered only her “own subjective apprehension” that the surgery would be

painful. Employer contends Dr. Higgs’ inability to guarantee a favorable result from the

procedure cannot justify a refusal to seek treatment because no patient can receive a guarantee

from a physician that a particular surgery will be entirely successful.

       Code § 65.2-603 provides in relevant part as follows:

               The unjustified refusal of the employee to accept . . . medical
               service or vocational rehabilitation services when provided by the
               employer shall bar the employee from further compensation until
               such refusal ceases and no compensation shall at any time be paid
               for the period of suspension unless, in the opinion of the
               Commission, the circumstances justified the refusal. In any such
               case the Commission may order a change in the medical or
               hospital service or vocational rehabilitation services.

“If medical care required under Code § [65.2-603] is refused, further compensation is suspended

unless the refusal is justified or until the refusal is cured.” Richmond Mem’l Hosp. v. Allen, 3

Va. App. 314, 317, 349 S.E.2d 419, 421 (1986).

       “The matter of justification must be considered from the viewpoint of the patient and in

light of the information [that] was available to [her].” Holland v. Va. Bridge & Structures, Inc.,

10 Va. App. 660, 662, 394 S.E.2d 867, 868 (1990). “Justification is a factual determination

made upon an objective view of all the circumstances as they reasonably appeared to the

claimant.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 213, 390 S.E.2d 788, 789
                                                -3-
(1990). “By statute, the commission’s factual findings are conclusive and binding on this Court

when those findings are based on credible evidence.” City of Waynesboro v. Griffin, 51

Va. App. 308, 312, 657 S.E.2d 782, 784 (2008); see Code § 65.2-706. “In determining whether

credible evidence exists,” this Court will not “retry the facts, reweigh the preponderance of the

evidence, or make its own determination of the credibility of the witnesses.” Wagner Enters.,

Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

        The commission is not required to accept a claimant’s bare fear of a particular medical

treatment as sufficient justification. However, circumstances may explain the claimant’s

apprehension and provide the requisite justification for the refusal of medical treatment. In

Mullins, the claimant injured her right ankle and underwent surgery to correct the problem. 10

Va. App. at 212-13, 390 S.E.2d at 789. The injury, which her treating physician characterized as

“very painful,” required the claimant to use a cane to walk. Id. The claimant was also treated by

a psychiatrist due to her depression, anxiety, and constant pain associated with her injury. While

undergoing an independent medical examination, the physician attempted to administer a stress

test, but the claimant refused because her treating physician told her to do no stretching or

bending and “she was genuinely in fear of the testing.” Id. at 213, 390 S.E.2d at 789. We held

that these facts supported the commission’s conclusion that the claimant was justified in refusing

to take the stress test. Id.

        In this case, specific evidence in the record explains claimant’s refusal to undergo the

osteotomy. As a result of the first surgery, claimant suffered extreme pain that left her

debilitated for a week. After having this painful experience, claimant was informed that she

would have to undergo a second surgery that her treating physician described as “brutal.” 2


        2
         Dr. Higgs explained the procedure to claimant, which would have required Dr. Higgs to
“cut through [the] bones and rearrange them back to the knee cap to take pressure off of the knee
where [there] had been pressure.”
                                              -4-
Although the osteotomy is “frequently” used to treat knee injuries such as claimant’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.” Mullins, 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.” Holland, 10 Va. App. at 662, 394 S.E.2d at 868. From claimant’s

perspective, her treating physician was asking her to undergo a second, even more painful

surgery. In fact, Dr. Higgs was unable to guarantee the same probability of success for the

second surgery. 3 Although the lack of a guarantee should not automatically entitle a claimant to

refuse a procedure, the circumstances in this case elevated claimant’s concerns into a justifiable

refusal. Thus, the evidence establishes claimant’s “genuine fear” and supports the commission’s

factual finding that she was justified in refusing the osteotomy.

                                                 III.

                                          CONCLUSION

        Credible evidence supports the commission’s finding that claimant was justified in

refusing to undergo the osteotomy. We therefore affirm the reinstatement of claimant’s

disability benefits.

                                                                                           Affirmed.




        3
         Dr. Higgs acknowledged that despite the high probability of success of the first
operation, claimant continued to experience debilitating pain in her right knee.
                                              -5-
