                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bumgardner and Lemons


ROBERT L. BROWN, SR.
                                                  MEMORANDUM OPINION *
v.   Record No. 2051-98-2                              PER CURIAM
                                                   FEBRUARY 16, 1999
STEVEN W. JETT GENERAL CONTRACTOR
 AND PENNSYLVANIA NATIONAL SECURITY
 INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Robert L. Flax; Flax, Billy & Stout, on
             briefs), for appellant.

             (Donna White Kearney; Taylor & Walker, on
             brief), for appellees.


     Robert L. Brown, Sr. ("claimant") contends that the Workers'

Compensation Commission ("commission") abused its discretion in

denying his request for a change in treating physicians from

Dr. E. Claiborne Irby, Jr.      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.
     On appeal, we view the evidence in the light most favorable

to the prevailing party below.      See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Whether a treating physician has released or abandoned his

patient generally is determined by the express intent of the

physician.    In some cases, the total circumstances must be

     *
      Pursuant to Code § 17-1.413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
analyzed in order to determine whether discharge, release, or

abandonment of the patient was intended.   This determination is a

factual one which must be proved by clear and convincing

evidence.    See Jensen Press v. Ale, 1 Va. App. 153, 157, 336

S.E.2d 522, 524 (1985).

     In denying claimant's request for a change in treating

physicians, the commission held that Dr. Irby's treatment and

management of claimant's chronic condition was not inadequate,

ineffective, unconventional, or excessive, and that it did not

conflict with applicable standards of care.   In so ruling, the

commission found as follows:

            Dr. Irby stands ready to provide conservative
            treatment for any aggravations to claimant's
            condition and has provided conservative
            treatment for claimant's chronic back
            condition. . . . Surgery is not a viable
            option for the claimant, and all the
            physicians indicate the claimant's condition
            is chronic and no further diagnostic studies
            are needed. . . .
                 Claimant complains that his back
            condition is exacerbated by the long trips to
            Dr. Irby's office, a trip that Dr. Irby has
            authorized by approving the claimant to drive
            for an hour and then rest and stretch for
            brief periods. While we acknowledge that the
            trips may not be pain free, unfortunately
            given the chronic nature of claimant's
            condition, claimant will probably not be free
            of pain. Additionally, there is no evidence
            that the trips are medically detrimental to
            the claimant.
                 Dr. Irby is a specialist in orthopedics
            and was requested by the claimant. The
            ninety-three mile distance to his office,
            while not short, is not unreasonable given
            the need for claimant to be monitored and
            treated for a chronic condition. We find no
            merit in claimant's contention that setting
            up appointments with Dr. Irby is unduly



                                - 2 -
          difficult. The record reveals that Dr.
          Irby's office has taken care to reschedule
          missed appointments in a timely fashion.
          Finally, there is nothing in the record to
          justify the assertion that claimant is in
          need of narcotics for effective pain control.

     The commission's factual findings are amply supported by the

medical records and, therefore, will not be disturbed on appeal.

Because claimant failed to present any clear and convincing

evidence of abandonment or inadequate treatment by Dr. Irby, we

cannot find as a matter of law that the commission erred in

denying claimant's request for a change in treating physicians.

     For these reasons, we affirm the commission's decision. 1

                                                          Affirmed.




     1
      Appellee filed a "Motion to Exclude Appellant's Reply
Brief." We deny that motion.




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