                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Haley and Senior Judge Bumgardner
Argued at Alexandria, Virginia


SHERWIN WILLIAMS COMPANY
                                                             MEMORANDUM OPINION* BY
v.     Record No. 2156-05-4                               JUDGE RUDOLPH BUMGARDNER, III
                                                                   APRIL 25, 2006
JASON M. ENGLAND


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Lauren Piana (Lynn McHale Fitzpatrick; Franklin & Prokopik, P.C.,
                 on brief), for appellant.

                 Andrew S. Kasmer for appellee.


       Sherwin Williams Company appeals the denial of its applications to suspend the benefits

of Jason M. England because he obstructed independent medical examinations. We hold the

worker did obstruct his examination without justification, and we reverse.

       The worker suffered a compensable injury in September 2000. Karen Shoemaker, a

registered nurse assigned to manage the case for the carrier, arranged for an independent medical

examination with Dr. Stephen S. Hughes. The worker appeared for the appointment on May 3,

2004, but he refused to complete a six-page form provided by the doctor’s clinic.

       The orthopedic clinic gave the form to each person it saw. The doctors at the clinic

required the patient to complete the form. The first four pages asked for basic medical history.

The fifth page, “Patient Registration Form,” requested identifying information such as the

address, employer, referring doctor, and insurance carrier. The sixth page, “Authorization to Pay



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Benefits And Release Medical Information To The Anderson Clinic, Inc.,” included a statement

that the patient would be liable for any outstanding balance due.

       Shoemaker completed the insurance portion of the form, but the examination did not go

forward because the worker would not complete the medical history portions in the absence of

his attorney. Shoemaker called the attorney in an attempt to facilitate completion of the form.

The worker spoke with his attorney’s office, but he still did not complete the form, and the

examination did not proceed.

       Shoemaker rescheduled the examination for May 26, 2004. She sent a copy of the

clinic’s form to the worker’s attorney to review before the appointment and a request that the

attorney advise her of any concerns about the form. Neither the attorney nor the worker advised

her of any concerns.

       The worker appeared for the appointment but brought only the first two pages of the

form, and those were only partially completed. The worker wrote his name, the date, the date of

his injury, his age, and checked a description of his usual type of work. Other entries were not in

the worker’s handwriting. One responded to a question to classify the injury, “ask defense

counsel for copy of discovery or ask claimant to describe injury . . . .” Another responded “see

pleadings” to questions about the length of time out of work, prior accidents, and prior workers’

compensation claims. When the worker obtained the two pages from his attorney’s office, they

contained the entries that the worker did not write.

       The worker told the clinic’s nurse, “you can ask me anything you’d like on here and I’ll

answer it. But I just would not fill it out.” The worker understood how to complete the forms,

did not object to them being too personal, and stated he would answer all the questions orally.

His attorney advised him not to complete the form. The second examination did not proceed.




                                            -2-
       The deputy commissioner found the worker was required to complete all portions of the

form except for the acknowledgement of liability for any balances on the account.1

The deputy commissioner found the medical form was a valid part of an employer’s medical

evaluation and refusal to complete it was tantamount to refusing to undergo the examination.

The deputy commissioner further found the worker was not justified in refusing to complete the

form and thus obstructed the examination.

       The worker appealed the suspension of benefits to the full commission. After a review

on the record, a majority of the commission reversed the deputy commissioner’s decision and

reinstated benefits. The commission found the worker improperly refused to complete the

medical history portion of the form. It firmly admonished:

              [W]e do not condone the claimant’s conduct. A refusal to provide
              written answers, while asserting a willingness to verbally answer
              any questions, evinces dilatory and possible obstructionist
              behavior. Doctor’s offices have processes and procedures in place
              to facilitate efficient patient visits and examinations. If the
              claimant did not object to the questions, he should have answered
              them within the system created by the doctor’s office. We note
              that providing verbal answers to the questions, rather than writing
              his answers in his own hand, creates more opportunity for
              miscommunication and incorrect documentation of his responses.
              Additionally, the chart on page four of the intake forms asked the
              claimant to mark areas where he felt pain or tingling sensations.
              Contrary to his testimony, assessing pain and lack of sensation is
              relevant to an IME.

       However, the majority ruled the employer failed to carry its burden to prove that the

examination was cancelled because the worker did not complete the medical portion of the form.


       1
              The questions are Dr. Hughes’s way of obtaining an accurate
              history from the claimant. The answers should be given in the
              claimant’s own handwriting so that Dr. Hughes can ascertain how
              the claimant, and not his attorney, perceives his physical condition
              and medical history. Dr. Hughes needs to know what treatment
              and therapy the claimant has received since his accident, and the
              doctor needs to assess any differences that may exist between
              subjective and objective findings.
                                           -3-
It concluded, “Based on the evidence, we are not able to ascertain exactly why Dr. Hughes

refused to examine the claimant.”

        Under Code § 65.2-607,2 if a claimant in “any way obstructs” an independent medical

examination, his benefits must be suspended unless the commission finds the circumstances

justified that obstruction.

        The worker was not required to execute that part of the form that made him liable to pay

for the examination, and it was reasonable for the worker to request that his attorney review the

form before completing it. However, the worker never raised any objections after being

provided the opportunity to review the form with his attorney. Instead, the worker appeared with

two out of the six pages partially completed. He refused to answer the medical questions in

writing but offered no real reason for refusing and was willing to provide the requested

information orally.

        While the majority is correct that “no representative from the doctor’s office testified as

to why the examinations did not go forward,” the record clearly established why the

examinations did not proceed. The worker conceded the first examination was terminated


        2
            Code § 65.2-607 provides in its pertinent part:

                         A. After an injury and so long as he claims compensation,
                  the employee, if so requested by his employer or ordered by the
                  Commission, shall submit himself to examination, at reasonable
                  times and places, by a duly qualified physician or surgeon
                  designated and paid by the employer or the Commission . . . .

                          B. If the employee refuses to submit himself to or in any
                  way obstructs such examination requested by and provided for by
                  the employer, his right to compensation and his right to take or
                  prosecute any proceedings under this title shall be suspended until
                  such refusal or objection ceases and no compensation shall at any
                  time be payable for the period of suspension unless in the opinion
                  of the Commission the circumstances justify the refusal or
                  obstruction.

                                              -4-
because “he did not fill out the paperwork.” Shoemaker testified that she understood the

examinations did not go forward because the worker would not complete the forms.

       The record contains3 a report from Dr. Hughes explaining that the first appointment was

cancelled because the worker would not complete the paperwork. The doctor gave the worker

the second appointment when he was informed the worker would complete the paperwork.

However, when the worker arrived for the second appointment some of the requested

information was completed by his attorney and referred the doctor to discovery, pleadings, or the

patient. The doctor explained that the patient personally needed to respond to the questions, but

the worker refused to do so. The appointment was then cancelled.

       The record establishes the first appointment did not proceed because the worker refused

to provide the data requested. The information sought was routine medical history reasonable

and necessary for the doctor to conduct an examination. The worker knew why the first

examination did not proceed. When he refused a second time to provide that information, he

knew or should have known the examination would not proceed. As he stated to the deputy

commissioner and maintained on this appeal, “Failure to complete their requested paperwork

does not constitute either a refusal or an obstruction of the examination.”

       The worker maintained that he was only required to present himself for the examination

and was not required to complete any of the forms submitted. While the worker was justified in



       3
         The May 26, 2004 memorandum signed by “Carol Dodson, LPN for Steven S. Hughes,
M.D.” was attached as an exhibit to the employer’s application and was designated as a medical
record submitted under Rule 2.2(B)(3). Though the worker objected to the memorandum at the
hearing before the deputy commissioner, the objection was never sustained. Rather, the deputy
commissioner reserved ruling upon the admissibility of the memorandum. The deputy
commissioner’s opinion referred to the Rule 2.2 submissions when listing the evidence
submitted. On review before the full commission, the worker did not challenge the deputy
commissioner’s designation of the documents submitted under Rule 2.2(B)(3) as part of the
evidence of record. Therefore, the worker waived any objection he might have had to the
commission’s consideration of the memorandum.
                                          -5-
not completing the part of the form that obligated him to pay for any balance due, that did not

justify his refusal to complete the medical history portion. The fact that he was justified in not

completing one portion of the form does not mean he was justified in not completing the others.

Justification for one obstruction does not provide justification for other obstructions.

       The evidence only permits a finding that the independent medical examination did not

proceed because the worker would not complete the medical history portion of the clinic’s form.

That portion of the form consisted of four pages seeking general background information about

the worker’s injury and his medical history. It was reasonable to have the worker provide the

highly relevant information. The evidence and the reasonable inferences arising from it only

permit a finding that the examination by Dr. Hughes did not proceed because the worker refused

to complete the forms the doctor required for the examination.

       The worker’s refusal to provide complete, written responses to the questions contained on

pages one through four of the paperwork prevented the examination. His refusal was not

justified by his justified refusal to complete page six. Accordingly, we hold that employer

proved the worker obstructed the May 26, 2004 medical examination with Dr. Hughes. Because

the evidence does not permit a finding that the obstruction was justified, we reverse.

                                                                                           Reversed.




                                            -6-
Benton, J., dissenting.

       This proceeding arose upon the employer’s application to terminate England’s

compensation award on the ground of change in condition. The rule is well established that “the

burden is on the party alleging such change to prove his allegations by a preponderance of the

evidence.” Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572

(1986). The commission found that the employer did not meet its burden of proof.

       Pertinent to our review of the commission’s decision is the following provision in Code

§ 65.2-607, which was the basis for the employer’s application:

               If the employee refuses to submit himself to or in any way
               obstructs such examination requested by and provided for by the
               employer, his right to compensation and his right to take or
               prosecute any proceedings under this title shall be suspended until
               such refusal or objection ceases and no compensation shall at any
               time be payable for the period of suspension unless in the opinion
               of the Commission the circumstances justify the refusal or
               obstruction.

Code § 65.2-607(B) (emphasis added).

       The commission’s finding that the evidence established justification for the employee’s

conduct “is a factual determination” that the commission makes after taking into account “an

objective view of all circumstances as they reasonably appeared to the [employee].” R.G. Moore

Building Corp. v. Mullins, 10 Va. App. 211, 213, 390 S.E.2d 788, 789 (1990) (citing Code

§ 65.1-98 (now § 65.2-607)). As with all factual determinations, the “commission’s factual

findings on this issue are conclusive and binding on this Court if supported by credible

evidence.” Mullins, 10 Va. App. at 213, 390 S.E.2d at 789. As an appellate court “[w]e do not

retry the facts before the Commission nor do we review the weight, preponderance of the

evidence, or the credibility of witnesses.” Caskey v. Dan River Mills, Inc., 225 Va. 405, 411,

302 S.E.2d 507, 510-11 (1983).



                                           -7-
       “Under our standard of review, when we consider an appeal from the commission’s

decision, we must view the evidence in the light most favorable to the party who prevailed

before the commission.” K&K Repairs & Const. v. Endicott, 47 Va. App. 1, 6-7, 622 S.E.2d

227, 229 (2005). The evidence in the record established, and the commission found, that a

portion of the form England had been asked to complete before being examined by the doctor

was inappropriate. The commission’s findings include the following:

                       The doctor’s office also used an “Authorization to Pay
               Benefits and Release Medical Information” form. That form
               requested insurance information and indicated that [England]
               would be liable for the cost of the examination in the event that the
               workers’ compensation insurer did not pay. [The nurse employed
               by the employer’s insurer] was not sure whether he was instructed
               to complete and sign that form at both examinations. [England]
               mentioned that a portion of the paperwork addressed his liability
               for the cost of the visit, and he stated that he would not sign
               anything outside of the presence of his attorney. We find that he
               was not obligated to fill out and sign this form. It is an
               inappropriate form for a workers’ compensation claimant attending
               an employer-requested medical examination. Furthermore, it is an
               inaccurate statement of his obligations, and he was under no duty
               to sign it.

       The commission found that the employer, who had the burden of proof, failed to prove

that England’s refusal to assume liability for medical costs, which was inappropriately inserted

on the form he refused to complete, was not the “cause of the examination not going forward.”

The record supports this finding.

       The commission noted that England “conceded” that his refusal to complete the form was

the reason for the cancellation. The nurse employed by the employer’s insurer also had the

“understanding” that this was the reason. That fact is neither disputed nor dispositive. The

dispositive fact is whether England’s refusal to complete the part of the form he was not

obligated to complete was the basis or part of the basis for the doctor’s refusal to examine

England. The commission made specific factual findings on this issue:


                                           -8-
                        In this case, no representative from the doctor’s office
               testified as to why the examinations did not go forward. From this
               evidence, we cannot determine whether [England’s] failure to
               provide responsive written answers to numerous questions in the
               first four pages of documents, or his proper refusal to provide
               insurance information and accept personal liability for the exam
               charges, occasioned the cancellation of the examinations. It is
               important to know whether the failure to fill out completely the
               paperwork prevented the examination, or whether the failure to
               assume financial responsibility was the determinative factor. As
               the employer has the burden of proof in this matter, we find that it
               failed to establish whether [England’s] failure to fill out all, or part,
               of the paperwork prevented the examinations from going forward.
               If it were only his failure to fill out the part regarding financial
               responsibility, such conduct would not constitute unjustified
               refusal. However, if [England’s] failure to provide the requested
               information on page four was a cause of the examinations not
               going forward, the result in this case likely would be different.
               Based on the evidence, we are not able to ascertain exactly why
               Dr. Hughes refused to examine [England].

       In my view, the majority opinion usurps the commission’s exclusive fact finding function

when it attempts, as the decision of a reviewing court, to make up for the employer’s deficiency

in its proof. The nurse was not employed by the doctor who was to conduct the examination. It

was not the nurse who refused to examine England. It was the doctor. The nurse, therefore,

could not say, indeed she did not say, that England’s refusal to complete the inappropriate part of

the form (which unlawfully obligated England to assume financial responsibility for the

examination) was not the cause for the doctor’s refusal to examine England. Neither the nurse’s

testimony nor the doctor’s report is germane to the foundational fact at issue in this case.

       Contrary to our standards of review, the majority opinion makes the factual finding that

“[t]he evidence only permits a finding that the independent medical examination did not proceed

because the worker would not complete the medical history portion of the clinic’s form.” At its

core, the majority opinion merely speculates about evidence that plainly was not put before the

commission by the employer, the party who bore the burden of proof. Without any basis in fact,

the majority opinion concludes that England’s refusal to complete the medical authorization that
                                             -9-
made him liable for the doctor’s fees was not the cause of the doctor’s refusal to examine

England. Not only is this an impermissible second guessing of the weight the commission gave

to the evidence, it is pure fact finding.

        We do not redetermine on appeal the probative weight of the evidence.

                “In determining whether credible evidence exists, the appellate
                court does not retry the facts, reweigh the preponderance of the
                evidence, or make its own determination of the credibility of the
                witnesses.” “Matters of weight and preponderance of the
                evidence, and the resolution of conflicting inferences fairly
                deducible from the evidence, are within the prerogative of the
                commission, and are conclusive and binding on the Court of
                Appeals.”

City of Richmond Fire Dep’t v. Dean, 30 Va. App. 306, 311-12, 516 S.E.2d 709, 711-12 (1999)

(citations omitted); see also Code § 65.2-706(A). The commission, as fact finder, found nothing

in the doctor’s report that touched upon the impact of England’s refusal to supply an

authorization that the doctor inappropriately sought. Indeed, the doctor’s report does not address

the issue of the improperly sought authorization. The majority opinion has inappropriately

weighed the evidence and reached a different factual conclusion upon its view that other

evidence, not in the record, was determinative. It is well established, however, that even when

there is “contrary evidence . . . in the record [it] is of no consequence if credible evidence

supports the commission’s finding.” Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229,

409 S.E.2d 824, 826 (1991). Furthermore, even if we were authorized to conclude, as the

majority opinion does, that the weight of the evidence favors a finding for the employer, we are

not at liberty to conclude that the commission’s finding to the contrary, which is supported by

credible evidence, must be rejected. C.D.S. Services v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d

236, 240 (1978). The commission found that the doctor’s form required information that was

inappropriate and that England was not required to complete the form. It further found that the

employer did not prove his failure to supply this inappropriate authorization was not the basis
                                            - 10 -
upon which the doctor refused to examine England. These findings are supported by credible

evidence.

        The commission, in its role as a fact finder, could properly conclude from the evidence in

this record, that the cause of the doctor’s refusal to examine England was just as likely because

England did not complete the inappropriate authorization. “Where reasonable inferences may be

drawn from the evidence in support of the commission’s factual findings, they will not be

disturbed by this Court on appeal.” Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404,

374 S.E.2d 695, 698 (1988). Likewise, “the Commission’s conclusions upon conflicting

inferences, legitimately drawn from proven facts, are equally binding on appeal.” Watkins v.

Halco Engineering, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).

        In summary, the commission found that England was justified in refusing to complete

and sign the form making him conditionally liable for payment of the cost of examination. As

the commission ruled, “it is an inaccurate statement of his obligations, and [England] was under

no duty to sign it.” The commission further found that “the employer [had] the burden of proof

. . . [and] failed to establish whether [England’s] failure to fill out all, or part, of the paperwork

prevented the examination from going forward.” Moreover, as the commission found, if the

cause of the doctor’s refusal to examine England was “his failure to fill out the part regarding

financial responsibility, [England’s] conduct would not constitute unjustified refusal.”

        On this record, we cannot say as a matter of law that the evidence proved the doctor did

not refuse to examine England because England refused to accept responsibility to pay the

doctor’s costs of the examination. Consequently, the commission’s factual findings and ruling

that the employer did not meet its burden of proof are binding and conclusive upon us. Tomko v.

Michael’s Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

        For these reasons, I would affirm the commission’s finding.

                                             - 11 -
