COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

TRACY EUGENE TALBOT 

v. Record No. 1016-95-2 MEMORANDUM OPINION* BY 

 JUDGE MARVIN F. COLE 

BLACK INDUSTRIES, INC. FEBRUARY 27, 1996 

AND 

UNITED STATES FIDELITY & GUARANTY COMPANY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Gary W. Kendall (Michie, Hamlett, Lowry, 

Rasmussen and Tweel, on brief), for 

appellant. 

 Robert M. McAdam (Katherine Cabell Londos; 

Wooten & Hart, P.C., on brief), for 

appellees. 

 Tracy Eugene Talbot ("claimant") appeals a decision of the 

Workers' Compensation Commission denying his June 27, 1994 change 

in condition application. Claimant contends that the commission 

erred in (1) refusing to grant his request for a change in 

treating physicians; (2) finding that he did not prove that his 

April 14, 1994 right knee injury constituted a compensable 

consequence of his February 12, 1992 compensable back injury; and 

(3) not awarding him temporary total disability benefits on the 

ground that he did not adequately market his residual work 

capacity after March 29, 1994. For the following reasons, we 

reverse the commission's ruling denying claimant's request for a 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

change in treating physicians and we affirm the commission's 

decision as to the remaining two issues. 

Background 

 On February 12, 1992, while working for employer as a 

foreman, claimant suffered a compensable back injury. Dr. Eric 

Korsh, an orthopedic surgeon, diagnosed degenerative disc disease 

at L4-L5 with mild spinal stenosis. On September 7, 1993, Dr. 

Korsh performed surgery on claimant's back. On December 20, 

1993, Dr. Korsh released claimant to return to work, noting that 

he did not comply with work hardening. On January 13, 1994, Dr. 

Korsh recommended that claimant continue rehabilitation with Dr. 

Murray Joiner, Jr., a physical medicine and rehabilitation 

specialist. Dr. Korsh also noted that "there is nothing further 

that I can offer him." On January 12, 1994, Dr. Joiner released 

claimant to return to full unrestricted work. However, on 

February 10, 1994, claimant returned to Dr. Joiner complaining of 

lower back pain. As a result, Dr. Joiner restricted claimant 

from lifting more than seventy-five pounds. 

 Claimant testified that between February 1994 and April 14, 

1994, he experienced episodes of leg numbness, which on two 

occasions caused his knee to give way and caused him to fall. 

Claimant contended that he did not tell Dr. Korsh about the leg 

numbness because Dr. Korsh refused to treat him. On April 14, 

1994, claimant's leg went numb and he fell on his right knee 

while at home. Claimant sought treatment for this knee injury at 
 3 

the Memorial Hospital of Martinsville emergency room, where Dr. 

Robert P. Albanese noted that claimant had undergone back 

surgery, but that, even prior to the surgery, he had trouble with 

his legs giving out. Dr. Albanese diagnosed a possible torn 

medial meniscus of the right knee and referred claimant to Dr. 

Peter Perry, an orthopedist. 

 Dr. Perry's April 28, 1994 office notes and Attending 

Physician's Report reflect a history of a right knee injury, 

which occurred at work a few weeks earlier. On June 7, 1994, Dr. 

Perry noted that claimant clarified his earlier history by 

stating that he had fallen at home, not at work. On July 21, 

1994, Dr. Perry opined that he did not believe claimant's knee 

problem was directly related to claimant's back injury. However, 

Dr. Perry stated that claimant's knee problem might be indirectly 

related to his back problem, if a giving way episode related to 

the back injury led to claimant's torn meniscus. 

 On August 8, 1994, on a friend's recommendation, claimant 

sought treatment from Dr. Hallett H. Mathews in Richmond, 

Virginia, a three-hundred mile round trip from claimant's home. 

On August 22, 1994, Dr. Mathews noted that, if claimant's back 

and leg symptoms did not improve with conservative treatment, he 

might be a candidate for further surgery. On October 12, 1994, 

Dr. Mathews opined that claimant was unable to perform heavy 

manual labor. Dr. Mathews restricted claimant from lifting more 

than twenty pounds and advised him to avoid frequent bending, 
 4 

twisting, and sitting for extended periods of time. Dr. Mathews 

also stated that claimant could not return to his pre-injury work 

with employer unless these restrictions applied. 

 On October 21, 1994, employer notified claimant's counsel 

that it did not accept Dr. Mathews as the treating physician and 

offered claimant a new panel of physicians, consisting of Drs. 

Strong, Crickenberger, and Stevens. Claimant called Drs. 

Crickenberger and Stevens, both of whom refused to treat him. 

Thereafter, employer substituted Dr. Perry for Dr. Crickenberger. 

 Claimant agreed to accept Dr. Perry as his treating physician. 

However, Dr. Perry declined to accept claimant as a patient, so 

claimant requested a referral to another doctor. When Dr. Perry 

told claimant he should return to Dr. Korsh and obtain a referral 

to Dr. Mathews, claimant stated that Dr. Korsh would not see him 

and asked Dr. Perry to refer him to Dr. Mathews. On December 12, 

1994, Dr. Perry wrote that claimant should return to Dr. Mathews 

since claimant had seen Dr. Mathews before. Claimant testified 

that his attorneys were pursuing a medical malpractice action 

against Dr. Korsh. However, claimant did not know whether a 

lawsuit had been filed on his behalf against Dr. Korsh. 

 Claimant testified that between February 1994 and August 15, 

1994, he looked for work and registered with the Virginia 

Employment Commission ("VEC"). He also stated that he called 

potential employers between two and four times per week during 

this time period. In response to employer's Interrogatory 
 5 

number 4, which was admitted into evidence, claimant provided the 

names of nine potential employers he contacted between 

February 12, 1992 and August 15, 1994. Claimant did not set 

forth the date of the job contacts, the specific jobs, or whether 

he filled out applications in either his testimony or his 

interrogatory answer. 

 I. Change in Treating Physicians

 The commission denied claimant's request for a change in 

treating physicians on the ground that he failed to prove that 

Dr. Korsh's treatment was inadequate or that Dr. Korsh abandoned 

claimant as a patient. 

 "Whether a treating physician has released or abandoned his 

patient most often is determined by the express intent of the 

physician. Some situations may require analysis of the total 

circumstances to determine whether discharge, release or 

abandonment of a patient was intended." Jensen Press v. Ale, 1 

Va. App. 153, 157, 336 S.E.2d 522, 524 (1985). Here, the 

uncontradicted evidence in the record shows that, as of 

January 13, 1994, Dr. Korsh had nothing further to offer 

claimant. The evidence also shows that, in October 1994, 

employer offered claimant a new panel of physicians consisting of 

Drs. Strong, Stevens, and Crickenberger. Employer's October 1994 

offer of a new panel effectively removed Dr. Korsh from treating 

physician status. Therefore, employer waived its right to insist 

that claimant return to Dr. Korsh. Moreover, because the panel 
 6 

physicians offered to claimant by employer refused to treat him, 

employer should have offered claimant another panel of physicians 

willing and able to treat him. Accordingly, we reverse the 

commission's ruling requiring claimant to return to Dr. Korsh and 

remand this case for the commission to enter an order requiring 

employer to offer claimant a new panel of physicians. 

 II. Right Knee Injury

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 "[W]here a causal connection between the initial compensable 

injury and the subsequent injury is established, the doctrine of 

compensable consequences extends the coverage of the . . . Act to 

the subsequent injury because the subsequent injury 'is treated 

as if it occurred in the course of and arising out of the . . . 

employment.'" Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 

794, 407 S.E.2d 1, 3 (1991) (quoting Leonard v. Arnold, 218 Va. 

210, 214, 237 S.E.2d 97, 100 (1977)). Unless we can say as a 

matter of law that claimant's evidence sustained his burden of 

proof, the commission's findings are binding and conclusive upon 

us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 

S.E.2d 833, 835 (1970). 

 The commission found that claimant's right knee injury did 

not qualify as a compensable consequence of his February 12, 1992 

back injury. In so ruling, the commission found that claimant 
 7 

failed to prove that his leg numbness, which he claimed led to 

his right knee injury, was caused by his compensable back injury. 

 Although claimant testified that he experienced leg numbness 

and giving out after his September 1993 surgery, the 

contemporaneous medical records of Drs. Korsh and Joiner for the 

time following claimant's surgery did not support his testimony. 

 Moreover, in April 1994, claimant told Dr. Albanese that he had 

trouble with his legs giving out even before his back surgery. 

Based upon this evidence, the commission, in its role as fact 

finder, was entitled to give little weight to Dr. Perry's 

July 21, 1994 opinion on causation, which was premised upon the 

leg weakness arising after the back surgery. Finally, the 

medical records show that claimant first complained of right knee 

pain on April 3, 1994, eleven days before his alleged fall. 

 Based upon this record, the commission did not err in ruling 

that claimant's evidence did not prove a causal relationship 

between his compensable back injury and his alleged episodes of 

his leg numbness and his knee giving way. Accordingly, we cannot 

find as a matter of law that he met his burden of proving a 

compensable consequence. 

 III. Marketing/Disability

 "In determining whether a claimant has made a reasonable 

effort to market his remaining work capacity, we view the 

evidence in the light most favorable to . . . the prevailing 

party before the commission. . . ." National Linen Serv. v. 
 8 

McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). A 

claimant still has the burden of proving his entitlement to 

benefits, and to do that he has the burden of proving that he 

made a reasonable effort to procure suitable work but was unable 

to market his remaining work capacity. Great Atl. & Pac. Tea Co. 

v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987). 

 The uncontradicted medical evidence proved that Dr. Joiner 

released claimant to return to light-duty work on February 10, 

1994, with a restriction against lifting more than seventy-five 

pounds. Based upon claimant's failure to produce the names of 

potential employers he contacted, the date of such inquiries, the 

positions inquired about, and the dates of any applications he 

completed, we cannot find as a matter of law that he met his 

burden of proving he adequately marketed his residual work 

capacity after March 29, 1994. 

 Moreover, claimant's testimony that he applied with the VEC 

and that he called two to four potential employers per week 

conflicted with his interrogatory answer, which listed only nine 

employer contacts between February 12, 1992 and August 15, 1994. 

 Accordingly, the commission, as fact finder, was entitled to 

give little weight to claimant's testimony. 

 For the reasons stated, we reverse the commission's ruling 

ordering that claimant return to Dr. Korsh. The commission is 

directed to enter an order requiring employer to offer claimant a 

new panel of physicians willing and able to treat him, from which 
 9 

he can select a treating physician. We affirm the commission's 

decision as to the remaining two issues. 

 Affirmed in part,

reversed and remanded in part.