                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Haley and Senior Judge Bumgardner
Argued at Richmond, Virginia


STEVEN O. ALLEN
                                                            MEMORANDUM OPINION * BY
v.     Record No. 1861-08-4                               JUDGE RUDOLPH BUMGARDNER, III
                                                                  MARCH 17, 2009
WRIGHT’S BUICK, INC. AND
 ZURICH DIRECT UNDERWRITERS


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Rodger L. Smith for appellant.

                 William F. Karn for appellees.


       Steven O. Allen appeals an order of the Workers’ Compensation Commission to choose a

new treating physician. He maintains the commission abused its discretion in ordering the

change. Finding the commission did not abuse its discretion, we affirm.

       We view the evidence in the light most favorable to the party prevailing below. R.G.

Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The claimant

sustained a compensable injury by accident on September 14, 2001, that resulted in a neck strain,

a right shoulder injury, and depression. In January 2002, Dr. A.H. Nagia, an anesthesiologist and

pain management specialist, began treating the claimant. The treatment consisted of physical

therapy and prescription medications for pain management and depression. Initially, the

claimant lived in Woodbridge where Dr. Nagia maintained his offices, but he moved to Luray in

August 2005.



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
           The employer filed an application seeking a change in the treating physician on April 23,

2007. At the hearing on the application, the claimant testified he has treated with Dr. Nagia for

three to four years and Dr. Nagia has helped him “a whole lot.” The claimant asserted he had a

good doctor/patient relationship with Dr. Nagia. He testified Dr. Nagia got him “the proper

medication that I can actually deal with the pain in my leg and to lose him would be terrible.”

The claimant takes seven medications, which cause side effects, such as dizziness, fatigue, and

irritability. The claimant has trouble traveling, although Dr. Nagia has not restricted his driving.

           The claimant sees Dr. Nagia approximately once a month. When he has an appointment,

the claimant drives from Luray to his sister’s home in Dale City the day before. He gets up the

next morning, goes to his appointment, then drives to a pharmacy before returning home. When

traveling to the doctor’s office, the claimant takes various routes to avoid traffic back-ups, which

are “stressful” and “depressing” for him. He experiences “stress” and muscle spasms if he has to

sit in traffic back-ups. He acknowledged that his medications could cause him to “fall asleep” in

slow-moving traffic and that he has “got to keep going.” The claimant stated that he is willing to

accept reduced payments for travel expenses if he is allowed to continue treating with Dr. Nagia.

           In February 2007, the employer provided the claimant with a new panel of physicians,

consisting of one located in Harrisonburg and two located in Fishersville. The distances from the

claimant’s home to the doctors’ offices were 34.49 miles, 61.74 miles, and 62.32 miles

respectively. The distance to Dr. Nagia’s office was 85.62 miles, though the claimant

acknowledged that he often drove further than that because he took alternate routes to avoid

traffic.

           The deputy commissioner ordered a change in physicians because of the distance of the

claimant’s commute from Luray to Dr. Nagia’s office in Woodbridge. The commission

affirmed, stating:

                                                  -2-
               [W]e find no error in directing the claimant to choose from the
               panel. The claimant argues that because he is willing to accept
               lesser reimbursements for mileage, he should be able to continue
               with Dr. Nagia as his treating physician. However, the claimant
               repeatedly testified that he encounters physical difficulties and
               stress in driving distances with traffic back-ups and other road
               activity. He has had to split the trip into two days and take longer
               routes. We understand that the claimant feels he has a good
               doctor-patient relationship with Dr. Nagia, but there is no evidence
               that Dr. Nagia is providing any type of specialized care that other
               qualified doctors cannot provide. Under the circumstances
               presented, we find the change in physicians is warranted.

       The claimant maintains the commission abused its discretion in ordering a change in his

treating physician. 1 He argues the commission did not base its decision on any of the grounds

listed in Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 675, 508 S.E.2d 335, 341 (1998). In

that case, this Court held a change may be warranted if:

               “inadequate treatment is being rendered; it appears that treatment
               is needed by a specialist in a particular field and is not being
               provided; no progress being made in improvement of the
               employee’s health condition without any adequate explanation;
               conventional modalities of treatment are not being used; no plan of
               treatment for long-term disability cases; and failure to cooperate
               with discovery proceedings ordered by the Commission.”

Id. (quoting Powers v. J. B. Constr. Co., 68 O.I.C. 208, 211 (1989)).

       The claimant argues that none of the criteria in Allen apply to his situation. However,

nothing in that opinion suggests in any way that the criteria listed constitute a fixed or rigid,

complete or exhaustive list of the reasons that may justify a change in treating physicians.

       The claimant also argues that the commission simply decided that the commute to

Dr. Nagia’s office was unreasonable because it was further after the claimant moved to Luray.

He maintains Apple Constr. Corp. v. Sexton, 44 Va. App. 458, 605 S.E.2d 351 (2004),




       1
         For the purposes of this case, we accept the claimant’s assertion that an abuse of
discretion standard applies.
                                               -3-
establishes the proposition that “the claim that the closest doctor is the best doctor falls far short

of qualifying as an axiom of law.”

       In Apple Construction, the claimant had moved to Florida. The employer claimed that

the claimant’s medical condition would suffer if he remained under the care of his treating

physician in Virginia. The employer argued that its responsibility for travel reimbursement and

its potential liability for accidents in transit warranted a change to a physician in Florida. The

claimant countered that his recovery would suffer if he lost the continuity of care provided by his

treating physician. The commission found the treating physician had “‘acquired a unique

expertise regarding the claimant’s complicated condition — which ha[d] already necessitated

two surgeries performed by [the treating physician].’” Id. at 462, 605 S.E.2d at 353. No

evidence demonstrated “how, if at all, the commute would affect [the treating physician’s]

treatment plan.” Id. at 461, 605 S.E.2d at 352. “Instead, [the employer] relied entirely on

generalizations contending, for example, that [the claimant] needed ‘a local doctor for his own

benefit’ and would ‘get better with local treatment.’” Id.

       The facts in this case are quite different from those in Apple Construction. In this case,

credible evidence demonstrated that the commute from the claimant’s home in Luray to the

doctor’s office in Woodbridge was detrimental to the claimant’s condition and treatment. The

routine traffic back-ups that he encountered traveling through northern Virginia caused stress,

depression, and muscle spasms. Those conditions forced the claimant to take alternative routes

that lengthened the trip and extended it over two days. Unlike Apple Construction, nothing

indicated the treating physician provided any specialized treatment or treated a complicated

condition involving surgeries performed by the physician. In fact, credible evidence showed the

claimant’s treatment had remained unchanged for years and only involved physical therapy and

prescription medications.

                                                 -4-
       Under these circumstances, we find the commission’s decision ordering a change in the

claimant’s treating physician to a physician located closer to his home was entirely reasonable

and not an abuse of discretion. 2 Accordingly, we affirm the commission’s decision.

                                                                                           Affirmed.




       2
          We note that in ordering the change in treating physicians, the deputy commissioner
ruled that “[i]f the claimant feels unable to drive to the chosen doctor’s office because of the
effects of his injury or the effects of his medication then the defendants shall be responsible to
provide him with transportation to the appointments.” The commission affirmed the deputy
commissioner’s opinion in that respect.
                                                  -5-
