Whitt v. Abingdon Steel, Inc., 020922 VAWC, VA00001771039

• Docket Nº: Jurisdiction Claim VA00001771039
• Case Date: February 09, 2022
• Court: Virginia

JAMES WHITT v. ABINGDON STEEL, INC. COMMONWEALTH CONTRACTORS GROUP SELF-INSURANCE ASSOCIATION, Insurance Carrier THE LANDIN COMPANIES, Claim Administrator Jurisdiction Claim No. VA00001771039 Virginia In The Workers’ Compensation Commission February 9, 2022           Date of Injury: September 18, 2020          Claim Administrator File No. 602-2272-00-20-001.           Dan Bieger, Esquire For the Claimant.           Andrew R. Blair, Esquire For the Defendant.           REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.          OPINION           RAPAPORT Commissioner          The defendant requests review of the Deputy Commissioner’s September 21, 2021 Opinion reinstating the payment of temporary total disability benefits, ordering a panel of physicians within a reasonable distance from the claimant’s home, ordering a panel of three psychiatrists, amending the pre-injury average weekly wage and granting a credit.^[1] We AFFIRM in part and REVERSE in part.          I. Material Proceedings          The claimant, a steel welder and fabricator, sustained a compensable injury by accident on September 18, 2020. A November 6, 2020, Award Order provided for lifetime medical benefits for the injured body part of “[e]lectrical shock” and temporary total disability benefits.          The defendant filed an Employer’s Application for Hearing on March 18, 2021 alleging that Dr. Richard Wilson, the claimant’s treating physiatrist, released the claimant to return to pre-injury work on March 17, 2021. The defendant enclosed a prescription note stating that the claimant “May Return to Full Work Activity Continue under my care.” The claimant filed a Claim for Benefits on April 14, 2021 seeking wage loss benefits and requested “a panel, a psychiatrist was recommended but denied.” The form indicated that parts of body injured were “nervous system, arms, neck, brain, vision.”^[2]          The Deputy Commissioner conducted an evidentiary hearing on August 9, 2021. He found that the defendant failed to prove a release to return to pre-injury work and that two panels of physicians must be offered. He explained:          Although Dr. Wilson wrote a prescription pad note stating “May Return to Full Work Activity Continue under my care” on March 17, 2021, a close inspection of the evidence reveals Dr. Wilson did not intend to release the claimant to return to and perform all aspects of his pre-injury work as alleged. Rather, Dr. Wilson noted in the body of his March 17, 2021 report that:

At this point, I see no medical condition present which completely eliminates the reasonableness to expect Mr. Whitt to at least attempt to return to normal adult activities.

At best, this opinion supports a trial return to work. . . .

         Additionally, the evidence of record preponderates to establish the claimant has ongoing impairments which impair his ability to work. The employer must prove the employee’s current disability does not result from the industrial accident by a preponderance of the evidence. Rosello v. K-Mart Corp., 15 Va. App. 333 (1992). In this case, the claimant’s awarded injuries were not specified. As the issue of causation is not before us, we find the defendants have failed to establish by a preponderance of the evidence that the claimant is capable of returning to and performing all aspects of his pre-injury employment effective March 17, 2021 as alleged.          The claimant seeks a panel of physicians along with authorization for psychiatric treatment. The evidence presented establishes the claimant was referred to Dr. Wilson by the insurance carrier as confirmed by the claimant’s testimony and Dr. Wilson’s records. We take judicial notice that the claimant lives in Abingdon, Virginia, while Dr. Wilson’s office is located in Blacksburg, Virginia. We take judicial notice that the distance from the claimant’s home to Dr. Wilson’s office is 113 miles each way. We find this is not reasonable given the number of reputable physicians that are located within a 50 mile radius of the claimant’s home. No justification has been offered as to why the claimant was sent to Dr. Wilson. Although the claimant has treated with Dr. Wilson six times, we are not persuaded that the claimant was given any other option. Further, Dr. Wilson’s own records indicate that he was spending equal to or more time with the case manager than he was his patient. Therefore, we find the claimant is entitled to a panel of physicians from which he can choose a treating physician within a reasonable distance of his home to provide continued care, treatment and any referrals that are necessary.          We find the claimant sustained psychological injury as a result of his compensable accident. The nature...