Opinion
Record No. 1019-92-4
September 23, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Lawrence J. Pascal; Ashcraft Gerel, on brief), for appellant. Appellant submitting on brief.
(Michael N. Salveson; Hunton Williams, on brief), for appellee. Appellee submitting on brief.
Present: Chief Judge Koontz, Judges Baker and Elder.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Ronald R. Wisniewski sustained an injury by accident in 1988, and received compensation benefits for total disability through June 23, 1991. Thereafter, the employer filed an application with the Workers' Compensation Commission seeking to terminate benefits based on Wisniewski's refusal to undergo recommended surgery. The commission found that Wisniewski's refusal was unjustified, and suspended benefits. Wisniewski appeals. He contends that his refusal was not unjustified because (a) medical opinions regarding the proposed surgery were in conflict, (b) the surgery was unreasonable, and (c) the surgery was unnecessary. We do not accept Wisniewski's contentions, and, accordingly, we affirm the commission's decision.
I. Conflicting Medical Evidence
Code § 65.2-603(B) reads, in pertinent part:
The unjustified refusal of the employee to accept such medical services . . . when provided by the employer shall bar the employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension unless, in the opinion of the Commission, the circumstances justified the refusal.
Wisniewski first argues that, because the medical opinions on the success of the proposed surgery differed, he was justified in refusing to go forward with the surgery. While Dr. Paulk, a chiropractor, opined that the surgery had little chance of success, she also acknowledged that her treatment of Wisniewski would not return him to work but would merely maintain his condition and prevent further deterioration. On the other hand, Dr. Watkin, a neurologist, and Dr. Preuss, a neurosurgeon, favored surgery. In a June 21, 1991 letter and in answers to interrogatories, Dr. Preuss stated that surgery should enable Wisniewski to return to work as an art teacher (with restrictions on heavy lifting). Moreover, Wisniewski, in his testimony, conceded that Dr. Preuss had told him that surgery gave him an eighty per cent chance of returning to his employment.
"[I]t is fundamental that a finding of fact made by the Commission is conclusive and binding upon this court on review. A question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986) (citations omitted). The commission was free to accept the opinions of Drs. Preuss and Watkin, and to reject the opinion of Dr. Paulk. Their opinions constitute credible evidence to support the commission's decision that surgery was justified.
We have stated, however: "The question is not whether the recommended procedure was justified, but whether the patient's refusal to submit to it was justified. The matter of justification must be considered from the viewpoint of the patient and in light of the information which was available to him." Holland v. Virginia Bridge Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867, 868 (1990). The patient's viewpoint, however, is not the sole means by which to judge the reasonableness of a refusal. The justification for refusal must be objectively reasonable and not the product of an individual quirk or paranoia.
Here, the commission made a finding that the more credible medical evidence favored surgery as the best hope to return Wisniewski to productivity. Wisniewski knew that a neurosurgeon predicted that surgery would give him an eighty percent chance of returning to work, that a neurologist also favored surgery, and that his chiropractor could offer no better option than to attempt to maintain his current painful and unproductive condition. Under these circumstances, we cannot say that the commission erred in finding that the refusal was unjustified.
In his testimony, Wisniewski agreed with the notion that he was "content to take it easy and minimize [his] activity, live with this level of pain and physical incapacity and just forget about the possibility of returning to work." Although Wisniewski can certainly exercise this option, he cannot expect the employer to pay for him to "take it easy" when there exists, according to the medical opinion accepted by the commission, an eighty percent chance that surgery can return him to work.
We do not agree that Wisniewski's situation is the same as that confronted by the claimant in Cho v. Northern Virginia Builders, 62 O.I.C. 123 (1983). There, orthopedic surgeons disagreed as to what type of surgery was necessary and as to the probability of these surgeries returning him to work. The commission noted that "[t]he claimant, caught in the middle of this medical dispute, has understandably not chosen either procedure." Id. at 126. We do not read Cho to establish the principle that whenever medical opinions diverge the employee can refuse treatment. Rather, each case must be evaluated on its own facts. In Cho, the commission made no finding as to which procedure was more credible. Here, as noted earlier, the commission made a factual finding that the more credible medical evidence favored surgery.
II. Reasonableness of Surgery
Wisniewski argues that the "risk of the operation should be weighed against" its potential success in determining its reasonableness. We agree, as did the commission. The commission, in rendering its decision, noted that "[t]here is always some degree of risk in surgery." The commission took that factor into account in making its finding.
III. Necessity of Surgery
In arguing that the surgery was not necessary, Wisniewski notes that Dr. Preuss stated that the surgery was "elective." To obtain the full import of this statement, it is necessary to place it in its proper context. In a September 12, 1991 report, the doctor wrote:
Although the patient continues to have pain and restricted activities he seems quite content to live with this and since there is no evidence of any progressive neurological deficit there certainly is no reason for him not to do that. This is after all an elective procedure and since there is no evidence of any progressive neurological deficit the decision regarding surgery has to be left up to the patient.
We do not read this report as being inconsistent with Dr. Preuss' recommendation for surgery. We read it as nothing more than a recognition that the decision whether to proceed with the surgery rests with the patient. As noted earlier, Wisniewski is free to decline surgery and "take it easy." However, he cannot expect the employer to pay for this inactivity when a reasonable alternative exists that would, in all likelihood, return him to work.
For the reasons stated, we affirm the commission's decision.
Affirmed.