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
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 Â§ 17-1.413, recodifying Code Â§ 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
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
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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
Appellee filed a "Motion to Exclude Appellant's Reply
Brief." We deny that motion.
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