eNotes: Workers’ Compensation – May 2023 – Virginia

SIGNIFICANT CASE SUMMARIES

Virginia Case Summary

Abu Jalloh v. S.W. Rodgers
Court of Appeals of Virginia
0920-22-4

Decided April 4, 2023

A “good faith effort” to provide a panel of physicians, which included providing copies of a panel list to claimant’s wife at his home, was insufficient to satisfy the employer’s requirement of providing a panel.

Background

Claimant sustained a compensable injury when he fell off a ladder. Four days after the accident, the Employer’s safety officer spoke with Claimant and explained they would be offering a panel of treating physicians. The safety officer followed up by vising Claimant’s home. Claimant was not home, so the safety officer gave a panel list to Claimant’s wife. The safety officer called Claimant to inform him he was giving a panel list, and Claimant angrily demanded that he leave. The safety officer offered to meet Claimant to hand-deliver the panel list, but Claimant declined. It is undisputed that Claimant never received the panel list, and Claimant saw his own doctor.

The Employer disputed the treatment as unauthorized, because he went to his own physician. The Deputy Commissioner held the Employer’s actions were insufficient, and the Employer was responsible for the treatment. The Full Commission reversed in a split decision, holding that “the Employer made a good faith effort to present the Claimant with a physicians panel, which the Claimant effectively refused by engaging in a course of conduct designed to frustrate the Employer’s effort to provide a panel.” Therefore, the Employer was not responsible for the unauthorized medical treatment. Claimant appealed.

Holding

The Court of Appeals reversed the full Commission, finding that there was no “good faith exception” to an Employer’s requirement to provide a panel under § 65.2-603. The Court accepted a plain reading of the statute and found that even in spite of the efforts Employer made, Employer did not “provide” Claimant with a panel list, and they were required to do so.

Takeaway

This was a judicially conservative reading of the Act, which normally benefits Employers, but did not do so here. In situations where the Claimant obstructs receipt of the panel, be aware that you need to deliver the panel however possible.

Questions about this case can be directed to Mike Bliley, Esq. at (571) 464-0435 or mbliley@tthlaw.com.