Opinion
Record No. 0812-94-4
Decided: February 14, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John J. O'Donnell, Jr., for appellant.
Joseph C. Veith, III, for appellees.
Present: Judges Willis, Bray and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The judgment of the Workers' Compensation Commission is affirmed.
On appeal, this Court will review the evidence in the light most favorable to the prevailing party. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
I.
The employer's right to an independent medical examination is set forth in Code Sec. 65.2-607 which provides:
A. After an injury and so long as he claims compensation, the employee, if so requested by his employer or ordered by the Commission, shall submit himself to examination, at reasonable times and places, by a duly qualified physician . . . designated and paid by the employer or the Commission. The employee shall have the right to have present at such examination any duly qualified physician or surgeon provided and paid by him. . . .
B. If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation . . . shall be suspended until such refusal or objection ceases and no compensation shall at any time be payable for the period of suspension unless in the opinion of the Commission the circumstances justify the refusal or obstruction.
"Justification is a factual determination made upon an objective view of all circumstances as they reasonably appeared to the claimant. The commission's factual findings on this issue are conclusive and binding on this Court if supported by credible evidence." R.G. Moore Building Corp. v. Mullins, 10 Va. App. 211, 213, 390 S.E.2d 788, 789 (1990) (quoting Code Sec. 65.1-98 (now Sec. 65.2-607)); Goodyear Tire Rubber Co. v. Watson, 219 Va. 830, 833, 252 S.E.2d 310, 312 (1979).
The commission's finding that Ms. Tageldin unjustifiably refused to submit to the two independent medical examinations scheduled by the employer was supported by credible evidence and is binding on appeal. Mullins, 10 Va. App. at 213, 390 S.E.2d at 789.
First, her allegation of an overseas trip to care for her sick daughter conflicted with her prior letter that mentioned only her husband's illness. In addition, she submitted only a boarding pass for a commuter flight to Philadelphia.
Second, her religious objection was not supported by the evidence. Documentation showed prior examinations by a male doctor during Ramadan.
Third, her last minute demand for her personal physician's presence at the examination on March 31, 1993 was not justified in light of the circumstances. The employer had already rescheduled the appointment at her request. At that time she made no mention of her desire to have her doctor present. Although she had a right under Code Sec. 65.2-607(A) to have her doctor present at the examination, this right may not be used to obstruct the employer's right to have a medical examination take place.
Fourth, her desire to examine the records and communications sent to Dr. Moshelle prior to his examination of her was not justified. The records could have been obtained after the examination and sent to her doctor for review. Furthermore, the employer had complied with the rules of the commission in submitting its medical records.
II.
Ms. Tageldin next contends that her benefits should have been reinstated upon her statement that she was willing to submit to an independent medical examination. She cites Thomas v. Grief Brother, 58 O.I.C. 339 (1979), in support of her position.
Ms. Tageldin's reliance on Thomas is misplaced. In Thomas, the commission did not hold that benefits would resume upon an offer of cooperation, as Ms. Tageldin argues. It held that the suspension of compensation during the period of refusal "is self-executing and that compensation should have been voluntarily resumed by the carrier on the date on which the claimant kept the contested medical appointment." Id. In addition, "[t]he commission has regularly held that, in the absence of other mitigating factors, suspension of benefits for refusal of medical . . . services will continue until a claimant actually meets with a physician . . . and cures a refusal." Lester v. Northern Mineral Corp., 64 O.I.C. 203, 205 (1985).
Despite claimant's expressed intention to cooperate, she neither made nor kept an appointment with Dr. Moshelle during the period between the employer's filing the application to suspend benefits on April 7, 1993 and the actual hearing on August 19, 1993. The commission found Ms. Tageldin's testimony incredible. It was in the best position to determine whether her stated willingness to submit to the examination was made in good faith. See Christiansen v. Metro Building Supply, Inc., Record No, 1949-93-4 (Court of Appeals, August 2, 1994).
No "mitigating factors" excused Ms. Tageldin's refusal. Therefore, the commission properly held that her benefits should not resume until she actually attends the independent medical examination, the ultimate proof of her cooperation.
For these reasons, we affirm the decision of the commission.
Affirmed.