Jerry Wayne Combs v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bumgardner and Lemons
JERRY WAYNE COMBS MEMORANDUM OPINION*
v. 	Record No. 1000-98-3 	PER CURIAM
SEPTEMBER 15, 1998
VALLEY HAULING, INC. AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(D. Edward Wise, Jr.; Arrington, Schelin &
Herrell, on brief), for appellant.
(John C. Johnson; Frith, Anderson & Peake, on
brief), for appellees.
Jerry W. Combs ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in suspending his
award of compensation benefits based on its finding that he
unjustifiably refused reasonable and necessary medical 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.
"Code § 65.2-603(B) bars a claimant from receiving further
compensation if the claimant unjustifiably refuses to accept
medical services provided by the employer." 	Shawnee Management
Corp. v. Hamilton, 25 Va. App. 672, 678-79, 492 S.E.2d 456, 459
(1997) (en banc) (citations omitted).
In granting employer's application and holding that claimant
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

- 2 -
unjustifiably refused to undergo a reasonable and necessary
diagnostic procedure, the commission made the following findings:
We note that the claimant's reported
discomfort with Dr. [Matthew] Wood personally
apparently did not arise until March 1997.
Before then, the fact that the procedure was
to be performed by Dr. Wood was not a factor.
We have carefully reviewed all the medical
records filed with the Commission and find
nothing inappropriate about the treatment by
and recommendations of Dr. Wood in this case,
and find no basis for the claimant's putative
lack of trust.
We also conclude that the claimant's
alleged "nerves" and mental attitude are
raised in these proceedings only as a
pretext. 	Combs was rejecting the cervical
myelogram even before he manifested the
psychological problems for which he was
referred to Dr. [Robert W.] Hill and
Dr. [Ronald W.] Brill. 	Moreover, even the
early psychological reports do not suggest
mental attitude as a basis for refusing the
surgery, but anticipate that the procedures
might be productive to reduce the claimant's
chronic pain and help return him to gainful
employment. 	Only much later were nerves and
mental attitude raised as grounds to refuse
the recommended procedure.
Claimant does not dispute that the cervical myelogram
recommended by Dr. Wood constituted reasonable and necessary
medical treatment and that claimant refused such treatment.
Rather, claimant argues that the evidence proved that he was
justified in refusing the procedure. 	We disagree.
"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 and
Structures, Inc., 10 Va. 660, 662, 394 S.E.2d 867, 868 (1990).

- 3 -
The record supports the commission's finding that Drs. Wood and
Melvin L. Heiman had fully explained to claimant the "benign and
minimally invasive nature" of the cervical myelogram, which Dr.
Wood had repeatedly recommended claimant undergo since April
1994.
Moreover, the commission, as fact finder, was entitled to
reject Dr. Brill's opinion and claimant's testimony that claimant
was psychologically unable to undergo the procedure. 	Notably,
during the same period of time that claimant alleged he was
mentally unable to undergo the relatively "benign" myelogram
procedure, he managed to have the mental capacity to undergo
major shoulder surgery. 	In light of this fact, the lack of any
credible evidence of personal friction or distrust by claimant
with Dr. Wood, and the lack of any psychological basis for
claimant's initial refusals to undergo the cervical myelogram,
the commission could reasonably infer that "claimant's alleged
'nerves' and mental attitude [were] raised . . . only as a
pretext." 	Accordingly, the commission did not err in ruling that
claimant unjustifiably refused to undergo the cervical myelogram.
For these reasons, we affirm the commission's decision.
Affirmed.