Apple Construction Corporation and Erie Insurance Exchange v. Orn Billy Sexton

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Bumgardner and Kelsey
Argued at Alexandria, Virginia
APPLE CONSTRUCTION CORPORATION AND
ERIE INSURANCE EXCHANGE
OPINION BY
v. 	Record No. 0819-04-4 	JUDGE D. ARTHUR KELSEY
NOVEMBER 30, 2004
ORN BILLY SEXTON
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Daniel E. Lynch (John T. Cornett, Jr.; Williams & Lynch, on brief),
for appellants.
Diane C.H. McNamara for appellee.
While on an open award for medical benefits, Orn Billy Sexton moved from Northern
Virginia to Florida. Wanting to remain under the care of his Virginia treating physician, Sexton
refused to accept the demand of his employer, Apple Construction Corporation, to choose a new
physician in Florida. Having failed to convince the Workers’ Compensation Commission to compel
the change of physicians, Apple Construction appeals. We affirm the commission’s decision.
I.
We view the evidence on appeal in the light most favorable to Sexton, the prevailing
party before the commission. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d 538,
539 (2003). Sexton sustained back and ankle injuries while at work for Apple Construction in
2001. Sexton applied for and received workers’ compensation benefits. Pursuant to his award,
Sexton began receiving treatment from Dr. Ronald Childs, a Fairfax physician. Dr. Childs
performed two back surgeries on Sexton. After the surgeries, Sexton continued to have symptoms

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of severe pain and ambulation limitations. While still recuperating, Sexton moved to Florida in
March 2003.
Apple Construction filed an application with the commission seeking to compel Sexton to
choose from a panel of physicians in Florida, claiming that Sexton’s medical condition would suffer
if he remained under the care of Dr. Childs. Apple Construction also argued that its responsibility
for travel reimbursement and its potential liability exposure for accidents in transit warranted the
relief requested. Sexton responded by asserting that his recovery would suffer if he lost the
continuity of care provided by Dr. Childs. As for any claim for travel expenses and any potential
injury claims occurring during transit, Sexton agreed to waive any such claims so long as he could
remain under the care of Dr. Childs. The commission denied Apple Construction’s request, finding
the evidence inadequate to warrant a compulsory change in treating physician.
II.
To justify a change in the treating physician, the employer bears the burden of proving that
specific circumstances warrant the change. Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 676,
508 S.E.2d 335, 341 (1998). Circumstances may warrant a change if:
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 of
treatment for long-term disability cases; [or] failure to cooperate
with discovery proceedings ordered by the Commission.
Id. at 675, 508 S.E.2d at 341 (quoting Powers v. J. B. Constr. Co., 68 O.I.C. 208, 211 (1989)); see
also H. J. Holz & Son, Inc. v. Dumas-Thayer, 37 Va. App. 645, 657, 561 S.E.2d 6, 12 (2002).
Apple Construction did not attempt to prove any of the circumstances outlined in Allen &
Rocks, Inc. No testimony or medical reports addressed, much less questioned, the quality of
medical care being provided by Dr. Childs or the adequacy of providing such care in the future.

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Nor did any evidence demonstrate how, if at all, the commute would affect Dr. Childs’s
treatment plan. Instead, Apple Construction relied entirely on generalizations ⎯ contending, for
example, that Sexton needed “a local doctor for his own benefit” and would “get better with
local treatment.”
The commission found these contentions unpersuasive, as do we. Apple Construction’s
claim that the closest doctor is the best doctor falls far short of qualifying as an axiom of law. To
prevail, Apple Construction was obliged to demonstrate its position with specific facts ⎯ a task
of advocacy left undone in this case. As the commission held, “there is absolutely no evidence
that the medical care provided to the claimant by Dr. Childs has been unreasonable or inadequate
in any way.” To the contrary, the commission found, “Dr. Childs has acquired a unique
expertise regarding the claimant’s complicated condition ⎯ which has already necessitated two
surgeries performed by Dr. Childs.” By relying on generalizations unsupported by evidentiary
proof, Apple Construction failed to carry its burden of persuasion.
Apple Construction, however, also contends that Sexton’s waiver of travel expenses and
potential liability claims during transit arguably runs afoul of Code § 65.2-300(A), which
precludes contractual releases of statutory benefits except where permitted by statute. Though
expressly accepting Sexton’s waiver as an “enforceable agreement,” Apple Construction fears it
may not be. The commission erred, Apple Construction argues, in refusing to recognize these risks
as sufficient to terminate Sexton’s continuing treatment with Dr. Childs.
We hold these risks to be illusory, thus rendering Apple Construction’s fears unfounded. A
stipulation by a claimant, when made before the commission as a condition for seeking other relief
and thus subject to the commission’s scrutiny, does not offend Code § 65.2-300(A). Such a
stipulation, in form and substance, serves as a partial compromise of an existing or potential claim.
Cf. Code § 65.2-701 (authorizing the parties to reach an agreement “in compromise” of a claim).

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The statutory scheme broadly “encourages the voluntary settlement of claims arising from
compensable injuries.” Watts v. P&J Hauling, Inc., 41 Va. App. 278, 283, 584 S.E.2d 457, 460
(2003); see generally Lawrence J. Pascal, Virginia Workers’ Compensation Law & Practice
§ 9.02, at 9-1 to 9-5 (3d ed. 2000 & Supp. 2004) (observing that compromise “may be in the best
interest of the parties”). A stipulation made before the commission, no less than a concession
made before a court, is a binding and enforceable obligation. Sexton’s waiver, therefore,
protects Apple Construction against any exposure to travel reimbursement costs or to liability
claims arising out of the transit to and from his treatment with Dr. Childs.
III.
Satisfied that Apple Construction did not provide adequate grounds justifying a change in
Sexton’s treating physician, we affirm.
Affirmed.