K & K Repairs and Construction, Inc., et al. v. Jackie Allen Endicott

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Benton and Bumgardner
Argued at Richmond, Virginia
K & K REPAIRS AND CONSTRUCTION, INC. AND
HARTFORD UNDERWRITERS INSURANCE COMPANY
OPINION BY
v. 	Record No. 0084-05-3 	JUDGE JAMES W. BENTON, JR.
NOVEMBER 22, 2005
JACKIE ALLEN ENDICOTT
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Ramesh Murthy (Penn, Stuart & Eskridge, on brief), for appellants.
D. Allison Mullins (Lee & Phipps, P.C., on brief), for appellee.
The issue raised by this appeal is whether the Workers’ Compensation Commission erred
in finding that Jackie A. Endicott was entitled to a change in his treating physician. We affirm
the commission’s decision.
I.
The record in this case is extensive, but the facts are essentially undisputed. The
evidence established that Jackie A. Endicott sustained compensable injuries to his neck, lower
back, right arm, and right shoulder on November 11, 1997, arising out of and during the course
of his employment with K & K Repairs and Construction, Inc. The commission approved the
parties’ Memorandum of Agreement and entered an award for temporary total benefits to be paid
weekly during Endicott’s incapacity and for medical expenses as long as necessary. Endicott
returned to work June 22, 1998, but moved to Florida in early 2000. Endicott and K & K
Repairs have had a continuing dispute concerning a treating physician for Endicott following his
move to Florida.

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In 2000, Endicott filed claims for benefits alleging, in part, that K & K Repairs had failed
to provide him with panel of physicians in Florida and had failed to pay medical benefits. After
an exchange of letters, Endicott received a panel of physicians on July 12, 2000 and selected a
physician from the panel. However, the physician he selected was unwilling to accept workers’
compensation patients. On August 25, 2000, K & K Repairs agreed to provide Endicott with
another panel. The record indicates K & K Repairs had “difficult[y] finding physicians in
Florida, willing to take on a Virginia workers’ compensation patient.”
Before Endicott received the next listing of panel physicians, he required medical
treatment and sought it from Dr. Mark Rubino, a neurologist. K & K Repairs refused to
authorize Endicott to treat with Dr. Rubino and ordered him to select from the panel previously
offered. The following day, Endicott went to a hospital emergency room where he received
treatment from Dr. Jeffrey M. Rosenfield. Dr. Rosenfield’s report indicates that “Dr. Rubino
was contacted as the patient’s neurologist” and that Endicott was admitted to the hospital at
Dr. Rubino’s recommendation. Dr. Rubino treated Endicott in the hospital and, three days later,
referred Endicott to Dr. Michael B. Lusk, a neurosurgeon. Dr. Lusk examined Endicott,
recommended that he be discharged, and arranged to continue treatment with him as an
outpatient.
Endicott received a second panel of physicians in October 2000. This panel included five
doctors including Dr. Lusk and Dr. Mark Gerber. Endicott selected Dr. Lusk, from whom he had
earlier received treatment. After Dr. Lusk demanded a $650 fee, K & K Repairs refused to honor
Endicott’s selection and promised to provide Endicott with “another physician on the panel from
which he can choose.” Eventually, the commission resolved the dispute between the parties
concerning Endicott’s treating physician. A deputy commissioner ordered the parties’ attorneys
to agree on a physician and to notify him of their agreement. Finding that the parties agreed that

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Dr. Gerber would be Endicott’s treating physician and that Dr. Lusk would be paid for his prior
services, the deputy commissioner ordered that result. On a request for review by Endicott, the
commission upheld the deputy commissioner’s findings and decision.
Endicott submitted other claims that were denied by the deputy commissioner. One of
those claims was for payment of fees for services rendered by Dr. Lusk after April 2000. In light
of the commission’s opinion, the deputy commissioner ruled that K & K Repairs was not
responsible for treatment rendered by Dr. Lusk after that date because Dr. Lusk was not the
authorized treating physician.
On June 6, 2003, Endicott filed this current claim for benefits, alleging that K & K
Repairs failed to pay his medical bills. Endicott later amended his claim to include a request that
Dr. Lusk be named as his treating physician based on a referral letter from Dr. Gerber, the
authorized treating physician. In his letter, Dr. Gerber notes that he and Dr. Lusk are partners in
the same medical practice group and that both are neurosurgeons. Dr. Gerber also notes in his
letter that he has not treated Endicott but reports as follows:
I have, however, reviewed the medical records of Dr. Mark Rubino
and Dr. Michael Lusk regarding [Endicott’s] care secondary to his
work-related injury. Dr. Rubino is a neurologist, who would
normally see a patient before I would, as I am a neurosurgeon. It is
customary in our practice to have a neurologist evaluate the patient
first and only refer surgery cases to the surgeon.
However, after a brief review of Dr. Rubino’s records, referral to
Dr. Lusk, my partner, was appropriate, as I was not available. He
did have a cervical injury with myelopathy necessitating
decompression. He has had chronic pain as a consequence of his
injury, as well as a seizure disorder which has been under the care
of Dr. Rubino.
Therefore, I do feel the treatment provided by Dr. Rubino and
Dr. Lusk has been reasonable, necessary, and related to his work
injury. I refer Mr. Endicott to Dr. Rubino and Dr. Lusk for
continuing treatment of his work-related injury.

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The letterhead on his stationery shows that Dr. Rubino is one of seven neurologists in that same
medical practice group.
The deputy commissioner denied Endicott’s request for a change in treating physicians.
He ruled that the letter from Dr. Gerber was of no consequence because Dr. Gerber had never
treated Endicott and had made the referral merely to accommodate Endicott. He reasoned that
Dr. Gerber had no basis for referring Endicott for treatment that was causally related to
Endicott’s injury by accident because he had neither seen nor treated Endicott.
The commission reversed the deputy commissioner’s ruling; the commission found that
Dr. Gerber’s referral to Dr. Lusk was reasonable because it was based on his uncontested
medical opinion that Dr. Lusk, with whom he practices, was well-suited to treat Endicott. The
commission noted that it routinely approves referrals within an attending physician’s medical
practice. The commission also found no legal or medical reason to disregard Dr. Gerber’s
opinion and found sufficient evidence to demonstrate that the referral was valid. The
commission further found that Dr. Gerber’s referral was based solely upon his medical opinion
and not upon any agreement or lack of agreement among the parties. A commissioner dissented,
stating his belief that the referral was based solely on Endicott’s request and, thus, was not
reasonable or necessary. He opined that Dr. Gerber could not legitimately refer Endicott because
he never treated Endicott.
II.
The dispositive question is whether Dr. Gerber made a valid referral to Dr. Lusk. The
rule is well settled that an employee may change a treating physician when referred by the
authorized treating physician, when confronted with an emergency, or when given permission by
the commission or the employer. Biafore v. Kitchin Equipment Co., 18 Va. App. 474, 478-79,
445 S.E.2d 496, 498 (1994); Shenandoah Products, Inc. v. Whitlock, 15 Va. App. 207, 210, 421

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S.E.2d 483, 485 (1992). The issue whether a treating physician has made a valid referral of his
patient to another physician for treatment is a factual question. Daniel Construction Co. v.
Baker, 229 Va. 453, 456, 331 S.E.2d 396, 398 (1985) (holding that the commission’s finding that
“‘Dr. Troup referred the claimant to Dr. Rezba’ . . . is supported by evidence”); Jensen Press v.
Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525 (1985) (holding that credible evidence supported
the commission’s factual finding “that the treating physician referred claimant to the pain
clinic”). By statute, the commission’s award is conclusive and binding on this Court as to all
questions of fact when those findings are based on credible evidence. Code § 65.2-706; Fairfax
County School Bd. v. Humphrey, 41 Va. App. 147, 150, 583 S.E.2d 65, 66 (2003). Moreover,
the existence of “contrary evidence . . . in the record is of no consequence if credible evidence
supports the commission’s finding.” Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229,
409 S.E.2d 824, 826 (1991).
Under our standard of review, when we consider an appeal from the commission’s
decision, we must view the evidence in the light most favorable to the party who prevailed
before the commission. Humphrey, 41 Va. App. at 150, 583 S.E.2d at 66. The undisputed
evidence established that Dr. Gerber, the designated treating physician, was a neurosurgeon in
the same medical practice group as Dr. Lusk. Moreover, both physicians were on the panel of
physicians that K & K Repairs provided to Endicott. Dr. Gerber’s letter expressly “refer[red] . . .
Endicott to Dr. Rubino and Dr. Lusk for continuing treatment of his work-related injury.” We
recognize that the referral could be perceived as having been occasioned because Endicott or his
attorney requested it. No facts proved that to be the case, however, and the commission, the
finder of fact, implicitly rejected the suggestion that it happened.
The commission found that “Dr. Gerber’s opinion . . . is not based on the parties’
agreement or the absence of an agreement, but on a medical opinion.” This finding is supported

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by credible evidence. In his letter, Dr. Gerber indicated that he reviewed Endicott’s records, and
he opined that Dr. Lusk, his practice partner, was well-suited to treat Endicott’s condition.
Dr. Gerber also noted that he “was not available” to treat Endicott. Thus, credible evidence in
the record supports the commission’s finding that “Dr. Gerber shares a practice with Dr. Lusk
and has opined that it is appropriate for [Endicott] to treat with Dr. Lusk, his partner.”
Significantly, Dr. Gerber also indicated in his letter that Dr. Rubino, a neurologist in his
medical practice group, would normally first see a patient under the custom of their group
practice and then make an evaluation before referring a patient to either Dr. Gerber or Dr. Lusk.
The commission evaluated these and the other circumstances of this case and found “no medical
or legal reason to disregard Dr. Gerber’s [uncontradicted] opinion.” Indeed, the commission
expressly accepted Dr. Gerber’s opinion that “the treatment provided by Dr. Rubino and
Dr. Lusk has been reasonable, necessary, and related to his work injury.” Whether Dr. Lusk
“should have been designated as the . . . treating physician was a matter within the discretion of
the commission.” Baker, 229 Va. at 457, 331 S.E.2d at 398.
We hold, therefore, that credible evidence in the record supports the commission’s
finding that Dr. Gerber made a valid referral to Dr. Lusk. Accordingly, we affirm the
commission’s decision.
Affirmed.