                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia


BETTY LOU OWEN
                                           MEMORANDUM OPINION* BY
v.   Record No. 0825-02-1                JUDGE JAMES W. BENTON, JR.
                                              DECEMBER 31, 2002
DAN RIVER, INC.

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Karen M. Rye (Kenneth J. Coughlan; Law Office
           of Karen M. Rye, on brief), for appellant.

           James A.L. Daniel (Elizabeth B. Carroll;
           Daniel, Vaughan, Medley & Smitherman, P.C.,
           on brief), for appellee.


     This appeal follows our remand to the commission to

"determine whether [Betty Lou Owen's] refusal to undergo [a]

bone scan or pursue pain management was justified."      Dan River,

Inc. v. Owen, Record No. 2222-00-3 (Va. Ct. App. April 24,

2001).   The commission ruled that both refusals were

unjustified.     Owen contends the commission erred in that ruling

and in failing to find the refusals had been cured.      For the

reasons that follow, we reverse the commission's decision and

remand for partial reconsideration.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                 I.

        Following our remand to the commission, a deputy

commissioner held a "hearing on the record" as permitted by the

commission's rules.    The deputy commissioner's opinion notes

that the record establishes "Owen testified that she did not

refuse the bone scan . . . [and that] Dr. Cohen told her the

bone scan was not necessary."    Ruling that Owen unjustifiably

refused the bone scan, the deputy commissioner indicated he was

"rely[ing] on Dr. Cohen's April 20, 1998, office note in which

he stated that Owen refused the bone scan because it was too

expensive."    Moreover, finding that Dr. Cohen "asked [Owen] if

she wanted to see . . . a pain management [specialist], but

[Owen] and her husband both refuse this," the deputy

commissioner ruled that Owen unjustifiably refused pain

management treatment.

        On review of the deputy commissioner's opinion, the

commission specifically found that "Dr. Cohen's notes reflect

. . . [that] 'Owen and her husband adamantly refused the bone

scan.    They said it was too expensive.'"   The commission also

found, however, that when Owen testified, she "denied refusing

to undergo the bone scan procedure."    The commission further

found that Dr. Cohen reported that he "asked [Owen] if she

wanted to see . . . a pain management doctor, but [she] and her

husband both refused this."    On these bases, the commission

affirmed the deputy commissioner's decision.
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                                 II.

     The record established that when Dr. Cohen broached the

issue of the bone scan with Owen, Dan River had denied coverage

and was not providing treatment to Owen as required by the Act.

That circumstance, however, does not insulate Owen from Dan

River's defense that she unjustifiably refused treatment offered

by the physician she selected.     See Chesapeake Masonry Corp. v.

Wiggington, 229 Va. 227, 327 S.E.2d 121 (1985).

     The record also established that Dr. Cohen's notes indicate

Owen refused the treatment "because it was too expensive."    Both

the deputy commissioner and the commission relied on this

evidence.   The commission made no finding, however, whether this

was a legitimate and justifiable basis to refuse the bone scan.

Obviously, if Owen had to bear the expense of the procedure and

the expense was financially burdensome to her, that fact would

bear upon the justification of her refusal.    The commission has

ruled under other circumstances that economic adversity or

financial burden justifies a refusal of services.     See e.g.,

Dotson v. F.A. Bartlett Tree Expert Co., 71 Va. WC 277, 278

(1992) (ruling that an employee justifiably refused selective

employment that required a lengthy commute and did not provide

reimbursement for expenses); Guthrie v. Ken Hurst Firearms

Engraving Co., 65 Va. WC 221, 222 (1986) (ruling that an

employee justifiably refused selective employment that would

cause "economic adversity"); Markell v. Falls Church Bowling
                              - 3 -
Center, No. 1384794 (Va. Workers' Comp. Commission, May 30,

1997) (ruling that the employee was justified in refusing to

attend a medical examination when the employer failed to advance

travel expenses).

     The rule is well established 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 Structure, Inc., 10

Va. App. 660, 662, 394 S.E.2d 867, 868 (1990).    If, from Owen's

viewpoint, the expense of the bone scan was the basis for her

refusal, and Dan River gave her no indication that it would pay,

then that circumstance would appear to be a factor in

determining whether Owen's refusal was justified.    We hold,

therefore, that the commission erred in not addressing whether

Owen's statement to Dr. Cohen concerning the expense of the test

was a justifiable basis to refuse the treatment.

     The record also strongly indicates Dr. Cohen did not

prescribe pain management but only gave Owen the option to

pursue it.    His notes reflect that he "asked her if she wanted

to see . . . a pain management doctor."    (Emphasis added).

                Code § 65.2-603(B) provides for the
             suspension of benefits if a claimant
             unjustifiably refuses medical treatment.
             "Once a physician is selected, it is well
             settled that an employee who is referred for
             additional medical services by the treating
             physician must accept the medical service or
             forfeit compensation for as long as the
             refusal persists."
                                 - 4 -
Schwab Construction v. McCarter, 25 Va. App. 104, 109, 486

S.E.2d 562, 564-65 (1997) (emphasis added) (citation omitted).

We find no evidence in the record or in the commission's opinion

that Dr. Cohen made a referral or said to Owen that this was a

mandatory course of action.   By giving Owen the option to either

pursue or not pursue the treatment, Dr. Cohen did not require

her to consider the consequences of selecting the action that

suited her choice.

     We are required to construe Code § 65.2-603 "liberally in

favor of the [employee], in harmony with the Act's humane

purpose."    Papco Oil Co. v. Farr, 26 Va. App. 66, 74, 492 S.E.2d

858, 862 (1997).   The record contains no credible evidence to

suggest that Owen was referred, as that term is commonly

understood, to a pain management doctor.   From the evidence in

the record and viewed from Owen's perspective, Dr. Cohen gave

Owen the option to either seek or not seek pain management

treatment.   Absent some other factor or explanation on the

record, the exercise of that choice does not denote unjustified

refusal.    We hold, therefore, that the commission erred in

ruling that Owen's decision not to pursue pain management

treatment was an unjustified refusal of medical treatment.

     Owen further contends that the commission erred in finding

that any refusal had been cured.   The record does not indicate

that Owen raised this issue when she filed her request for


                                - 5 -
review before the commission.   Accordingly, Rule 5A:18 bars our

consideration of this issue on appeal.

     For these reasons, we reverse the commission's ruling that

Owen unjustifiably refused pain management treatment, and we

reverse and remand to the commission to reconsider whether Owen

was justified in refusing the bone scan.

                                           Reversed and remanded.




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