                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia


THE SOUTHLAND CORPORATION, t/a 7-ELEVEN
 STORE #23305 AND AMERICAN PROTECTION
 INSURANCE COMPANY
                                                  OPINION BY
v.   Record No. 0532-00-4                 JUDGE JAMES W. BENTON, JR.
                                               OCTOBER 31, 2000
SHARON WELCH


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Edward H. Grove, III (Brault, Palmer, Grove,
             Zimmerman, White & Steinhilber LLP, on
             brief), for appellants.

             Diane C. H. McNamara for appellee.


     This appeal arises from the Workers' Compensation

Commission's rulings that Sharon Welch's medical treatment was

unauthorized and that she did not unjustifiably refuse medical

treatment.     The Southland Corporation contends the commission

erred in ruling that Welch's failure to select a physician from

a panel did not bar her from receiving wage loss indemnity

benefits.     By cross-appeal, Welch contends the commission erred

in ruling that her failure to select a physician from the panel

rendered her treatment unauthorized.     We affirm the commission's

award.
                                I.

     At the evidentiary hearing on Welch's application for

benefits, the evidence proved that Welch was injured at work on

September 3, 1998, when a thirty to forty pound carton fell onto

her right shoulder, neck, and back.    When her supervisor arrived

at work, Welch reported her injury and left work because she was

experiencing pain.   Although the supervisor did not direct Welch

to any specific medical provider, Welch called her supervisor

from home to tell her she intended to call Kaiser Permanente,

Welch's medical insurance company, for medical treatment.    Her

supervisor told her to do what she needed to do to get

treatment.

     That night, a person at Kaiser advised Welch by telephone

to apply ice and heat on her injury, take Tylenol, and see a

doctor in the morning if the injury was not better.   The next

morning, Welch went to Kaiser and was examined by a nurse

practitioner, who instructed Welch to take several prescribed

medicines and to return if the symptoms increased or persisted.

After leaving Kaiser, Welch went to her place of employment and

discussed completing an accident report with the store manager.

Although Welch told the manager that she had gone to Kaiser for

treatment, the manager did not tell her to seek treatment

elsewhere.

     Welch returned to Kaiser on September 8, 1998, and was

evaluated by Dr. Beverly Pfister.    Dr. Pfister diagnosed

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paracervical and paralumbar strain, advised Welch to continue

her medication, and ordered physical therapy.

     By letter dated September 9, 1998, a claims adjuster for

Southland's workers' compensation carrier advised Welch that her

treatment by the Kaiser doctors was not authorized, that

Southland would pay those doctors "to date," and that Welch

should seek treatment from one of three doctors listed in the

letter.   Welch received this letter three or four days after

September 9; however, she decided to continue treatment at

Kaiser and returned to see Dr. Pfister on September 15 because

her "pain [was] worse."   Dr. Pfister's notes reflect that at the

date of this evaluation Welch was still awaiting her first visit

to physical therapy.   Welch continued to receive treatment from

Dr. Pfister and other doctors at Kaiser until she was released

to return to light duty work on February 1, 1999.

     Affirming the deputy commissioner's decision, the

commission determined that Southland's offer of a panel of

physicians was neither untimely nor unreasonable.   Thus, the

commission ruled that Southland "was not financially responsible

for treatment rendered by [Welch's] unauthorized physicians

after receipt of the proffered panel."   The commission also

ruled that Welch's decision to continue "treatment by her

unauthorized physician is not necessarily the equivalent of a

refusal of medical services."   Finding that Welch had not

unjustifiably refused treatment and that no evidence proved the

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unauthorized treatment adversely affected her recovery, the

commission awarded Welch wage loss benefits for her periods of

disability.

                                  II.

     In pertinent part, Code § 65.2-603 provides as follows:

          A. 1. As long as necessary after an
          accident, the employer shall furnish or
          cause to be furnished, free of charge to the
          injured employee, a physician chosen by the
          injured employee from a panel of at least
          three physicians selected by the employer
          and such other necessary medical attention.
          . . . The employee shall accept the
          attending physician, unless otherwise
          ordered by the Commission, and in addition,
          such surgical and hospital service and
          supplies as may be deemed necessary by the
          attending physician or the Commission.

               *    *    *    *         *   *   *

          B. The unjustified refusal of the employee
          to accept such 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.

     Applying the predecessor to this statute, we ruled that

"[a]n attending physician selected by an employee becomes the

treating physician if the employer fails or refuses to provide a

panel of physicians."   Davis v. Brown & Williamson Tobacco Co.,

3 Va. App. 123, 126, 348 S.E.2d 420, 421 (1986).    The principle



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is well established, however, that although Code § 65.2-603

contains "no requirement . . . concerning the time after an

accident within which an employer must offer an employee the

panel of physicians prescribed by the Code section . . . , the

appropriate time must be determined by resort to a rule of

reasonableness, with the time varying from case to case

depending upon the different circumstances involved."       Peninsula

Transp. Dist. Comm'n v. Gibbs, 228 Va. 614, 618, 324 S.E.2d 662,

664 (1985).

     Among the findings the commission made concerning the

timeliness of Southland's notification of the panel are the

following:

                We believe that this was a timely offer.
             Between the date of her accident and
             September 8, 1998, there is no evidence that
             the employer was aware that [Welch] was in
             need of extended medical care. There is no
             evidence that the employer was informed that
             [Welch] was scheduled for additional
             treatment after September 4, 1998. [Welch]
             was released that day with recommended
             medications, and instructed to return only
             as needed. Not until September 8, 1998,
             when [Welch] first saw an actual physician
             at Kaiser, does it become apparent that
             [Welch] was likely to suffer a significant
             period of disability, and needed an
             attending physician and possibly a referral
             for specialized care. We believe that the
             carrier's offer of a panel of physicians,
             sent to [Welch] one day after her first
             treatment by Dr. Pfister, and received by
             [Welch] prior to her next treatment and
             before undertaking any subsequent referrals,
             was reasonable and timely.



                                 - 5 -
       These findings are supported by credible evidence in the

record; thus, they are "conclusive and binding as to all

questions of fact."    Code § 65.2-706.    See Stafford County

Sheriff's Office v. DeBord, 22 Va. App. 312, 314, 469 S.E.2d 88,

89 (1996).    Accordingly, we affirm the commission's rulings that

under these circumstances the notification of the panel of

physicians was timely, that Welch's continued treatment with the

Kaiser physicians was unauthorized, and that Southland was not

required to pay for the unauthorized treatment.

                                 III.

       The finding of unauthorized treatment, "however, is not

necessarily equivalent to a refusal of medical services under

Code § [65.2-603]."     Davis, 3 Va. App. at 127, 348 S.E.2d at

422.   Each concept requires a different analysis.

             The expense of medical service, if
             unauthorized, may not be compensable. But
             the use of unauthorized medical service is
             not necessarily a refusal of medical
             service. 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. Hosp. v. Allen, 3 Va. App. 314, 317, 349 S.E.2d

419, 421 (1986) (citations omitted).      Indeed, we held in Davis

that the commission "erroneously expand[ed] the notion of what

constitutes 'unjustified refusal' of medical treatment . . . by

equating unauthorized medical treatment with unjustified refusal

of treatment."    3 Va. App. at 126, 348 S.E.2d at 421.


                                 - 6 -
     Relying on Allen and Davis, the commission recognized "that

penalty for refusal of medical treatment must be based upon

'unjustified refusal.'"   This ruling is consistent with our

holding that "[t]he statute does not apply to every refusal of

medical treatment."    Biafore v. Kitchin Equip. Co., 18 Va. App.

474, 478, 445 S.E.2d 496, 498 (1994).     The legislative intent

implicit in "that statute 'is to penalize employees who

unjustifiably refuse reasonable and necessary medical treatment'

from their attending physician."    Id.   Code § 65.2-603 may not

be used to penalize an employee whom the commission finds has

reasonably sought to restore her health by seeking additional

treatment.   See Davis, 3 Va. App. at 128-29, 348 S.E.2d at 423.

Moreover, we have held that "[t]he matter of justification must

be considered from the viewpoint of the [employee] and in light

of the information which was available to [her]."     Holland v.

Virginia Bridge Structures, Inc., 10 Va. App. 660, 662, 394

S.E.2d 867, 868 (1990).

     As the commission found, Welch promptly sought medical

treatment for her injury.   Although she reported to her

supervisor that she was receiving treatment, her supervisors did

not comment on her choice of treatment.    Before Welch received

the letter from Southland containing notification of the panel,

she had selected a treating physician and received treatment

from that physician.   Welch followed the treatment regimen that

was prescribed to her by the doctors at Kaiser.    Welch's doctor

                                - 7 -
knew her history, and no evidence established that the treatment

was inappropriate or unnecessary.   Moreover, the commission

found that no evidence proved that Welch's continued treatment

with the unauthorized physician "adversely affected her

recovery."

     These findings are based on credible evidence and are

binding on this appeal.   Accordingly, we hold that the

commission properly ruled that Welch did not unjustifiably

refuse medical treatment.

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

                                                   Affirmed.




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