A Carluzzo Rochkind & Smith note: Following is an article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your workers’ compensation attorney should be familiar with. For more than 20 years our workers’ compensation lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Injured worker could consult his own doctor
By Virginia Lawyers Weekly – 4/13/2023
Where the employer unsuccessfully attempted to hand deliver a list of physicians who could treat an injured worker, the Workers’ Compensation Appellant Commission erred by recognizing a good faith effort exception to the act’s requirement to provide a list.
As a result, the claimant’s choice of his own physician to treat his injury was authorized under the act. The commission erred by concluding otherwise.
The claimant fell from a ladder at work and injured his neck, back and shoulder. He reported the incident to his supervisor and went home. Four days later, Haight, the company’s safety officer, went to the claimant’s home to deliver a statutorily required list of physicians, from which the claimant could chose a treating physician.
The claimant was not home. Haight spoke to his wife, who called the claimant.
“Haight spoke to him. Haight told the claimant he was at the home in order to provide him with a panel of physicians so that he could choose one from which to seek medical treatment, as required by Code § 65.2-603.
“The claimant angrily demanded that Haight leave. Haight offered to meet him in order to provide the list of physicians, but the claimant declined. Haight left without leaving a copy of the panel list.
“It is undisputed that the claimant never received the document providing a panel of physicians.
“The claimant saw his orthopedic surgeon, Dr. Mehrdad Malek, on June 15, 2021, and continued in his care. Malek diagnosed him with various sprains, strains, and a contusion.
“In order to address these injuries, Dr. Malek referred him to physical therapy and prescribed medication. In addition, Malek ordered the claimant to abstain from work until November 30, 2021.
“At the employer’s request, the claimant also saw Dr. Paymaun Lotfi. Dr. Lotfi evaluated the claimant in October 2021 and similarly assessed him with various sprains to the neck, back, and shoulder. Unlike Malek, however, Lotfi concluded that the claimant could return to medium-duty work.”
“The claimant sought benefits for his injuries under the Workers’ Compensation Act. At the hearing before the deputy commissioner, the employer stipulated that the claimant had suffered compensable injuries.
“However, the employer defended on two grounds. First, the claimant’s treatment was unauthorized because he went to his own physician. Second, he was not disabled to the extent alleged.
“The deputy commissioner decided that the employer was responsible for Dr. Malek’s treatment because it failed to provide the claimant with a panel of physicians despite ‘ample opportunity’ to do so ‘within a reasonable time after the accident.’
“He also held that based on Malek’s opinion as the claimant’s treating physician, the claimant was entitled to continuing temporary total disability benefits beginning June 15, 2021.
“The employer filed a request for review by the Commission. In a split decision, the Commission reversed the decision of the deputy commissioner in part and affirmed it in part.
“In doing so, the Commission held that ‘the employer made a good faith effort to present the claimant with a [physicians] panel, which the claimant effectively refused by engaging in a course of conduct designed to frustrate the employer’s effort to provide a panel.’
“The Commission concluded that therefore the employer was not responsible for the unauthorized treatment provided by Dr. Malek. Adopting Dr. Lotfi’s medical opinion, it also held that the claimant was not entitled to temporary total disability benefits after October 27, 2021.”
No good faith exception
“[T[here is no question that the employer did not provide a list of physicians to the claimant. There is no evidence that the employer sent it by regular mail or email to the claimant or his attorney, nor is there evidence that Haight left it at the claimant’s house when he was there.
“The Commission did not make a factual finding that a panel of physicians was provided. Instead, it found that the employer ‘attempted … to provide’ the claimant with a panel.
“The Commission determined that because the employer made a ‘good faith effort’ to provide a panel to the claimant, it met the requirement of Code § 65.2-603(A).
“The issue for resolution on appeal is whether a good faith effort is sufficient to fulfill the statutory obligation to provide a panel of physicians to an injured employee. …
“In order to fulfill its obligation under Code § 65.2-603 to provide a panel to a claimant, an employer must meet certain objective standards. See, e.g., Peninsula Transp. Dist. Comm’n v. Gibbs, 228 Va. 614, 618 (1985) (holding that an employer must offer a claimant a panel within a reasonable amount of time following the injury)[.] …
“The express and clear wording of the statute does not permit an employer to make only a good faith effort to provide a panel of physicians to the employee.
“For comparison, it is useful to look to other parts of the Workers’ Compensation Act that use the phrase ‘good faith.’” Examples from prior cases show “that the General Assembly can and does allow for good faith exceptions when it intends to do so. …
“We recognize the record contains no evidence that the employer intended to circumvent its obligation to provide a panel of physicians to the claimant.
“Nonetheless, the fact that Haight attempted to deliver a copy of the panel of physicians but felt that his efforts were obstructed by the claimant did not relieve the employer of its obligation to provide a panel list to the claimant.
“There were legitimate, straight-forward ways in which the employer could have complied with the requirement to provide a panel list, despite the claimant’s behavior.” The act does not require personal delivery of a physicians list.
Haight could have left the list at the claimant’s house or his wife, or sent an email to the claimant or his counsel. Because the claimant did not receive the list, he was entitled to select his own physician, which he did by seeking treatment from Dr. Malek. …
“Based on our ruling that Malek was, in fact, the claimant’s authorized treating physician, the case is remanded for the Commission to reconsider the claimant’s period of disability.”
Reversed and remanded.
Jalloh v. S.W. Rodgers, et al., Record No. 0920-22-4, April 4, 2023. CAV (published opinion) (Decker). From the Virginia Workers’ Compensation Comm’n. Andrew S. Kasmer for appellant. Kathryn Lea Harman for appellees. VLW 023-7-126, 9 pp.
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