Rigoberto C. Gutierrez v Espina Stone Company, et

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
RIGOBERTO C. GUTIERREZ
MEMORANDUM OPINION*
v. 	Record No. 0013-00-3 	PER CURIAM
MAY 9, 2000
ESPINA STONE COMPANY AND
NORTH RIVER INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(A. Thomas Lane, Jr., on brief), for
appellant.
(Lynn McHale Fitzpatrick; Siciliano, Ellis,
Dyer & Boccarosse, on brief), for appellees.
Rigoberto C. Gutierrez contends that the Workers'
Compensation Commission erred in finding that medical treatment
rendered to him by Dr. Alan Cason, a chiropractor, from
September 11, 1997 through January 19, 1998 was not medically
necessary and, therefore, Espina Stone Company was not
responsible for the cost of such treatment. 	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.
"[T]he question of whether the disputed medical treatment
was necessary within the meaning of Code § 65.2-603 is a mixed
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

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question of law and fact." 	Lynchburg Foundry Co. v. Goad, 15
Va. App. 710, 712-13, 427 S.E.2d 215, 217 (1993).
In declining to hold employer responsible for the cost of
Dr. Cason's chiropractic treatment, the commission found as
follows:
The Deputy Commissioner found the
opinions of Drs. [Gregory] Helm and [George]
Godette to be persuasive, and concluded that
the chiropractic treatment was not necessary
after August 26, 1997. 	We agree. 	Dr. Helm
stated on August 26, 1997, that continued
chiropractic care was not necessary.
Although Dr. Cason performed forty-four
additional treatments from July 29, 1997
through January 19, 1998, he was unable to
return [Gutierrez] to work. 	On February 3,
1998, Dr. Godette indicated that the
chiropractic treatments were perpetuating
the muscle injury. 	Dr. Godette was able to
return [Gutierrez] to full-duty work in a
short period of time. 	We also note that Dr.
Cason had the opportunity to treat
[Gutierrez] on seventy-five different
occasions through July 22, 1997, but was
unable to improve [Gutierrez's] condition to
the extent that [he] could return to work.
When considering the evidence as a whole, we
agree with the Deputy Commissioner's
conclusion that Dr. Cason's treatment after
July 26, 1997, was not necessary . . . .
As fact finder, the commission was entitled to accept the
opinions of Drs. Godette and Helm, which support the
commission's finding that Dr. Cason's medical treatment after
July 26, 1997 was not medically necessary. 	Moreover, we find no
merit in Gutierrez's argument that he was entitled to continue
with Dr. Cason's unauthorized treatment until January 19, 1998,

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the day he selected Dr. Godette from a panel as his treating
physician. 	Gutierrez was aware as early as August 1997 that Dr.
Godette had opined that Dr. Cason's chiropractic treatment was
not necessary and, as a result, was no longer authorized.
Indeed, Gutierrez requested a new panel of physicians from
employer. 	When Gutierrez discovered, however, that the new
panel was defective, he chose to continue to treat with Dr.
Cason, an unauthorized physician. 	The record contains no
justification for Gutierrez's failure to choose a new treating
physician or petition the commission for a change in treating
physicians.
For these reasons, we affirm the commission's decision.
Affirmed.