Spanish
VIRGINIA: 02/28/2007
IN THE WORKERS’ COMPENSATION COMMISSION
MARIA DIAZ-MARTINEZ, Claimant
Opinion by the
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COMMISSION
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v. VWC File No. 223-70-40
TGI FRIDAYS, Employer
INSURANCE CO. OF THE STATE OF PA, Insurer
Daniel P. Barrera, Esquire
1650 King Street, Suite 505
Alexandria, VA 22314
for the Claimant.
(Copy sent Priority Mail)
Douglas A. Seymour, Esquire
10521 Judicial Drive, Suite 300
Fairfax, VA 22030
for the Defendants.
(Copy sent Priority Mail)
REVIEW on the record before Commissioner Diamond, Commissioner Tarr, and Commissioner Dudley at Richmond, Virginia.
This case is before the Commission on the employer’s request for Review of the Deputy Commissioner’s April 5, 2006 Opinion finding the employer is responsible for treatment rendered by Drs. McDermott, Constantine, and Chung. We AFFIRM the Opinion below.
The claimant, age 43, sustained a compensable left hand injury on April 1, 2005, while working as a cook. The employer accepted her claim and a medical-only Award was entered by the Commission on June 27, 2005. On October 31, 2005, the claimant filed a claim for authorization of medical treatment. The employer defended the claim on the grounds that the medical treatment is not reasonable, necessary, or causally related to the accident.
The claimant testified that following her injury her hand was swollen. She sought treatment at Mary Washington Hospital and the Spotsylvania Emergency Center. The claimant testified that her hand and arm problems have worsened. She cannot use her arm and she suffers pain from her hand to her neck. In May 2005, she was referred to Dr. McDermott at Fredericksburg Orthopedics, who in turn referred her to Dr. Constantine. Dr. Constantine recommended occupational therapy and an MRI which were not approved.
The claimant testified that she also saw Dr. Chung, who prescribed Neurontin and Nortriptyline which she bought herself. She stated that the medication improved her symptoms. Dr. Chung recommended therapy and EMG testing which were not approved. The claimant last saw Dr. Chung in July 2005. She does not remember the name of the doctor who referred her to Dr. Chung, but stated that “Dr. Constantine referred me to one doctor and then that doctor referred to the last doctor.”
The claimant testified that she has sought no further treatment. She has continued to work since the accident and is currently working at Old Country Buffet. The claimant testified that she uses one arm and does not do any strenuous work.
The few medical records in the file reveal that the claimant was treated at Medic One on April 3, 2005, after she lifted a pan three nights earlier and felt pain in her left hand. Examination showed ecchymosis and swelling with decreased grip strength and tenderness. X-rays showed no fracture or significant arthritic changes. On May 7, 2005, the claimant saw Dr. Brian T. McDermott, and orthopedist, who reported that the claimant injured her left hand at TGI Fridays while lifting a heavy plate of shrimp and water. He noted that she continued to experience pain and immobility of her wrist. The claimant denied prior injury to her wrist. On examination, Dr. McDermott found restricted range of motion of the wrist in all directions, crepitus with radial deviation, decreased range of motion of the ulnar two digits, and mild decreased sensation of the fifth digit. He referred the claimant to Dr. Constantine “given the complexity of this issue.”
An Outpatient Prescription Order Form signed by or on behalf of Dr. Constantine on May 9, 2005, reflects that an MRI of the left wrist was ordered to evaluate for a TFCC tear. A handwritten notation indicates that the insurance company denied the MRI and the patient was sent to another doctor. An order was also generated for occupational therapy two times per week for six weeks.
On July 25, 2005, the claimant was evaluated by Dr. Raymond K. Chung, an orthopedist at a different practice. Dr. Chung reported that a large pan of shrimp and water fell onto the claimant’s left wrist dorsally, causing the volar aspect of the wrist to be pinched on the edge of a sink. The claimant continued to complain of pain and numbness in her hand and was unable to make a full fist. Dr. Chung’s detailed examination findings revealed multiple areas of tenderness, weakness in the hand and wrist, colder temperature about the left arm than the right, and some slight sensory disturbances.
Dr. Chung diagnosed a left arm crush injury and regional pain syndrome, rule out compression neuropathy/neuropraxia. He opined that the overriding feature of the claimant’s injury was pain out of proportion to the physical exam. He also noted the temperature changes, and concluded that “she does have complex regional pain syndrome.” Dr. Chung prescribed Neurontin and Nortriptyline as well as physical therapy and electrodiagnostic testing.
The employer obtained an evaluation by Dr. Michael O’Brien on September 28, 2005. Dr. O’Brien reviewed the claimant’s accident and treatment history. The claimant reported that her wrist pain was better. She had full range of motion of her wrist and fingers. Dr. O’Brien opined that the claimant suffered a contusion/crush injury in April 2005, and explained that those types of injuries “can lead to weird dysesthesias and sometimes RSD as indicated by the office notes.” Dr. O’Brien saw no evidence of a TFCC tear and expected that an MRI would be normal. He noted that the claimant might have residual RSD but was able to work.
Dr. O’Brien did not recommend therapy as the claimant was six months past the injury and her symptoms appeared to be slowly resolving. He suggested a wrist brace for heavier activities and encouraged the claimant to use her hand “and perhaps begin an aquatics program if possible and overall grip strengthening and perhaps occasional anti-inflammatories” but he opined there was no need for future medical management.
On Review, we note that whether an employer is responsible for medical expenses depends upon: (1) whether the medical service was casually related to the industrial injury; (2) whether the medical attention was necessary; and (3) whether the treating physician issued a referral for the treatment. WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 231, 494 S.E.2d 147, 152 (1997). There is no issue in this case regarding proper referrals. The issue is whether the medical services at issue were reasonable, necessary, and causally related to the work accident.
The claimant testified to continuing problems in the left hand and arm. The fact that she has admirably continued to work is of no moment in determining whether she is entitled to medical care for her injury. There is no suggestion in any of the medical records that the claimant sustained any injuries to her left hand and wrist other than the work injury. Most of the medical reports in the file, including the one from Dr. O’Brien, record a history of the work accident. Dr. O’Brien and Dr. Chung both diagnosed a contusion and crush injury. Several physicians recommended treatment and diagnostic tests to further evaluate the injury, but the defendants inexplicably denied this employee any treatment. Dr. O’Brien also suggests some further modalities even as he states that no further medical management is needed. We conclude that the claimant met her burden of proving that the medical services in question were reasonable, necessary, and causally related to her April 1, 2005, work injury. Accordingly, the Opinion below is AFFIRMED.
We further grant the claimant’s request for the assessment of attorney’s fees and costs against the defendants pursuant to Code Section 65. 2-713 for defending this claim without reasonable grounds SeeLowes of Short Pump Virginia v. Campbell, 38 Va. App. 55, 62, 561 S.E.2d 757, 760 (2002). The claimant was awarded medical benefits in this case, but the defendants have refused to provide medical care. As noted above, the records do not reflect any other cause for the claimant’s complaints other than the work injury. Although the treatment recommendations have varied somewhat, all of the examining physicians including Dr. O’Brien suggested some ongoing treatment modalities.
The Deputy Commissioner awarded an attorney’s fee of $250 to claimant’s counsel to be paid directly by the claimant. Judging this issue from the defendants’ perspective, there were no reasonable grounds to deny this employee medical care and continue to pursue this issue at the Review level. The attorney’s fee awarded below is increased to a total of $600. The defendants are responsible for $350 of this fee. The claimant is responsible for the remaining $250.
This matter is removed from the Review docket.
TARR, COMMISSIONER, Dissenting:
I respectfully dissent from the finding that the employer unreasonably defended the claimant’s claim for medical benefits. In support of their defense, the employer relied on the opinion of Dr. O’Brien, who concluded that further diagnostic testing and physical therapy was unnecessary because the claimant’s condition was improving.
A party’s good faith reliance on a contrary medical opinion is not a sufficient basis for imposition of attorneys’ fees.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.
cc: Maria Diaz-Martinez
14 Lavelle Dr.
Fredericksburg, VA 22407
TGI Fridays
1160 Carl S. Silver Pkwy.
Fredericksburg, VA 22401
Insurance Co. of the State of Pa.
AIG Domestic Claims Inc.
P.O. Box 70069
Louisville, KY 40270
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