                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


RIGOBERTO C. GUTIERREZ
                                             MEMORANDUM OPINION*
v.   Record No. 0013-00-3                         PER CURIAM
                                                 MAY 9, 2000
ESPINA STONE COMPANY AND
 NORTH RIVER INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (A. Thomas Lane, Jr., on brief), for
             appellant.

             (Lynn McHale Fitzpatrick; Siciliano, Ellis,
             Dyer & Boccarosse, on brief), for appellees.


     Rigoberto C. Gutierrez contends that the Workers'

Compensation Commission erred in finding that medical treatment

rendered to him by Dr. Alan Cason, a chiropractor, from

September 11, 1997 through January 19, 1998 was not medically

necessary and, therefore, Espina Stone Company was not

responsible for the cost of such treatment.     Upon reviewing the

record and the briefs of the parties, we conclude that this

appeal is without merit.     Accordingly, we summarily affirm the

commission's decision.     See Rule 5A:27.

     "[T]he question of whether the disputed medical treatment

was necessary within the meaning of Code § 65.2-603 is a mixed


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
question of law and fact."   Lynchburg Foundry Co. v. Goad, 15

Va. App. 710, 712-13, 427 S.E.2d 215, 217 (1993).

     In declining to hold employer responsible for the cost of

Dr. Cason's chiropractic treatment, the commission found as

follows:

                The Deputy Commissioner found the
           opinions of Drs. [Gregory] Helm and [George]
           Godette to be persuasive, and concluded that
           the chiropractic treatment was not necessary
           after August 26, 1997. We agree. Dr. Helm
           stated on August 26, 1997, that continued
           chiropractic care was not necessary.
           Although Dr. Cason performed forty-four
           additional treatments from July 29, 1997
           through January 19, 1998, he was unable to
           return [Gutierrez] to work. On February 3,
           1998, Dr. Godette indicated that the
           chiropractic treatments were perpetuating
           the muscle injury. Dr. Godette was able to
           return [Gutierrez] to full-duty work in a
           short period of time. We also note that Dr.
           Cason had the opportunity to treat
           [Gutierrez] on seventy-five different
           occasions through July 22, 1997, but was
           unable to improve [Gutierrez's] condition to
           the extent that [he] could return to work.
           When considering the evidence as a whole, we
           agree with the Deputy Commissioner's
           conclusion that Dr. Cason's treatment after
           July 26, 1997, was not necessary . . . .

     As fact finder, the commission was entitled to accept the

opinions of Drs. Godette and Helm, which support the

commission's finding that Dr. Cason's medical treatment after

July 26, 1997 was not medically necessary.   Moreover, we find no

merit in Gutierrez's argument that he was entitled to continue

with Dr. Cason's unauthorized treatment until January 19, 1998,


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the day he selected Dr. Godette from a panel as his treating

physician.    Gutierrez was aware as early as August 1997 that Dr.

Godette had opined that Dr. Cason's chiropractic treatment was

not necessary and, as a result, was no longer authorized.

Indeed, Gutierrez requested a new panel of physicians from

employer.    When Gutierrez discovered, however, that the new

panel was defective, he chose to continue to treat with Dr.

Cason, an unauthorized physician.   The record contains no

justification for Gutierrez's failure to choose a new treating

physician or petition the commission for a change in treating

physicians.

     For these reasons, we affirm the commission's decision.

                                                         Affirmed.




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