New River Community Action, Inc., et al. v Sehen

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Humphreys and Senior Judge Duff
NEW RIVER COMMUNITY ACTION, INC. AND
SELECTIVE INSURANCE COMPANY OF AMERICA
MEMORANDUM OPINION*
v. 	Record No. 1140-00-3 	PER CURIAM
OCTOBER 3, 2000
SUSAN LEIGH SEHEN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jonnie L. Speight; Johnson, Ayers &
Matthews, on brief), for appellants.
(Richard M. Thomas; Rider, Thomas,
Cleaveland, Ferris & Eakin, on brief), for
appellee.
New River Community Action, Inc. and its insurer
(hereinafter referred to as "employer") contend that the
Workers' Compensation Commission erred in denying its
application requesting a change in Susan Leigh Sehen's treating
physicians and requesting that she be required to select a new
physician from a panel of physicians offered by employer. 	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.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

- 2 -
of change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" 	Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d
570, 572 (1986)). 	The commission has ruled that it will order a
change in an employee's treating physician when "inadequate
treatment is being rendered; it appears that treatment is needed
by a specialist in a particular field and is not being provided;
no progress being made in improvement of the employee's health
condition without any adequate explanation; conventional
modalities of treatment are not being used; no plan for
treatment for long-term disability cases; and failure to
cooperate with discovery proceedings ordered by the Commission."
Powers v. J.B. Constr. Co., 68 O.I.C. 208, 211 (1989). 	Thus, we
have held that "when an employer seeks to change claimant's
treating physician because the claimant has made little progress
and no treatment plan has been derived, the employer must
identify the alternative care that should be substituted and
must demonstrate that the suggested care would be more
appropriate and productive." 	Allen & Rocks, Inc. v. Briggs, 28
Va. App. 662, 675, 508 S.E.2d 335, 341 (1998).
In denying employer's application, the commission found that
"[d]espite the complexity of [Sehen's] case, it does appear that

- 3 -
some improvement has occurred in recent years." 	The commission
also found that "[t]he voluminous medical record shows that
[Sehen's] current physicians have communicated with each other"
and ruled that it was "not persuaded that their treatment has been
inappropriate." 	These findings are supported by the medical
records of Sehen's treating physicians, Drs. Cecil B. Knox, III, a
physiatrist, N. Laura Liles, an osteopath, Mary C. Williams, an
osteopath/psychiatrist, and William P. Swann, a periodontist.
These findings are also supported by the records of licensed
professional counselors Susan M. Riggs and Lin M. Shaner and
physical therapist Ann L. Kite. 	Moreover, the uncontradicted
testimony of Sehen and her three family members supports these
findings.
The commission was "not persuaded by Dr. [Joseph] Niamtu's
and Dr. [Thomas] Koenig's recommendations that [Sehen] be treated
in an institution with multiple treating physicians." 	Indeed, the
commission found that Sehen was "already receiving a
multi-disciplinary approach with her treatments with Drs.
Williams, Knox, Liles, and Swann, and her therapists, Shaner,
Riggs, and Kite." 	Upon employer's request, Dr. Niamtu examined
Sehen once and reviewed her medical records. 	Dr. Koenig reviewed
her medical records, but never examined her. 	In its role as fact
finder, the commission was entitled to reject the opinions of Drs.
Niamtu, an oral/maxillofacial surgeon, and Koenig, a psychiatrist.

- 4 -
Significantly, the commission found as follows:
[A]ll involved physicians recognize the
complexity of [Sehen's] case. 	Yet, none of
the physicians who reviewed her records have
presented a convincing alternative treatment
plan. 	In December 1998, Dr. [Bruce]
Stelmack[, a physiatrist,] suggested vague
recommendations which seem to be already in
place or were attempted in the past.
Although he recommended palliative care by a
pain specialist, he also appeared to
disapprove of Dr. Knox's palliative
approach. 	Dr. Stelmack also admitted that
he could not offer [Sehen] treatment in
which she would substantially progress.
Similarly, in August 1998, Dr. [James M.]
Jecmen[, a dentist,] opined that he could
not offer a resolution or effective
treatment plan given the severity of her
condition. 	In September 1998, Dr. Beck also
expressed his reluctance to provide care
based on [Sehen's] history. 	In July 1999,
Dr. Koenig presented an elaborate proposal,
yet he had not examined her.
The suggestions offered by the
physicians who have examined [Sehen] are not
sufficient to justify removing the current
physicians at this time. 	While we agree
that some of the treatments may be
non-conventional or may have proven to be
ineffective, we are not convinced that the
treating physicians should be changed. . . .
The record establishes that her condition is
unique and that her gradual progress is
reasonable based on these circumstances.
Viewing the evidence in the light most favorable to Sehen,
who prevailed before the commission, we hold that the commission's
factual findings are fully supported by the medical records of the
treating physicians, the therapists, and the testimony of Sehen
and her family members. 	"Medical evidence is not necessarily

- 5 -
conclusive, but is subject to the commission's consideration and
weighing." 	Hungerford Mechanical Corp. v. Hobson, 11 Va. App.
675, 677, 401 S.E.2d 213, 215 (1991). 	Thus, credible evidence
in the record supports the commission's ruling that "the evidence
fails to establish that a change in physicians is warranted at
this time in this complex case."
Because our ruling on the change in physicians issue disposes
of this appeal, we need not address the second issue raised by
employer regarding the validity of the panel of physicians offered
to Sehen.
For these reasons, we affirm the commission's decision.
Affirmed.