COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Senior Judge Overton 

PEPSI-COLA BOTTLERS OF WASHINGTON, 

 D.C., INC. AND LUMBERMENS MUTUAL 

 CASUALTY COMPANY 

 MEMORANDUM OPINION*

v. Record No. 2299-98-4 PER CURIAM 

 FEBRUARY 16, 1999 

JOSEPH W. KANE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Robert J. Lowe, Jr.; Kimberly A. Karcewski; 

Lowe & Associates, on briefs), for 

appellants. 

 (Julie H. Heiden; Koonz, McKenney, Johnson, 

DePaolis & Lightfoot, on brief), for 

appellee. 

 Pepsi-Cola Bottlers of Washington, D.C., Inc. and its 

insurer (hereinafter referred to as "employer") contend that the 

Workers' Compensation Commission ("commission") erred in denying 

its request for a change in Joseph W. Kane's ("claimant") 

treating physicians. 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. 

 The commission has previously set forth 

several grounds upon which it will order a 

change in an employee's treating physician: 

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 

 

 *Pursuant to Code § 17-1.413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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 improvement of the employee's health 

condition without any adequate explanation; 

conventional modalities of treatment are not 

being used; no plan for treatment for 

long-term disability cases; and failure to 

cooperate with discovery proceedings ordered 

by the Commission. 

Powers v. J.B. Constr., 68 O.I.C. 208, 211 (1989) (construing 

Code § 65.1-88 (now Code § 65.2-603)). The commission's 

construction of the Act is entitled to great weight on appeal. 

See City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337 S.E.2d 

901, 903 (1985). 

 In denying employer's application, the commission found as 

follows: 

 [T]he record establishes that Dr. [Leo] 

Goldhammer prescribed recognized conservative 

treatment, that he administered and ordered 

appropriate testing, that he procured 

consultations, and that he worked in 

conjunction with Dr. [Charles B.] Jackson, 

who obviously had no problem with Dr. 

Goldhammer's treatment plan. Moreover, in 

his recent medical report, Dr. [Anthony] Debs 

expressed no recommendations for treatment, 

and in fact felt that maximum medical 

improvement was reached back in 1993. The 

claimant's condition is obviously a 

deteriorating one as is to be expected with a 

degenerative spinal condition, and both 

Doctors Goldhammer and Jackson have addressed 

this in their recommendations. No physician 

at this time is recommending surgery. 

 We find no basis to order a change in 

treating physicians, as Dr. Goldhammer has 

not endorsed the suggestion of a functional 

capacity evaluation and did not immediately 

address a question about such an evaluation. 

Even Dr. Debs has not recommended a 

functional capacity evaluation, but rather, 

only raised it as a possibility. Dr. 

Goldhammer has given sound reasons for his 

belief that the claimant should not 

physically have to undergo it. . . . 
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Moreover, Dr. Goldhammer's failure to 

immediately respond to the insurer's inquiry 

about the functional capacity evaluation does 

not constitute a basis to order a change in 

treating physicians, when the record 

otherwise reveals that he has promptly 

forwarded his reports following evaluations, 

and he already completed a functional 

capacity evaluation. Further, there were 

other avenues to obtain this information 

either through interrogatories or a 

deposition. 

 Viewing the evidence in the light most favorable to 

claimant, who prevailed before the commission, we find that the 

commission's factual findings are fully supported by the medical 

records of Drs. Goldhammer and Jackson. Based upon those factual 

findings, the commission could reasonably conclude that Dr. 

Goldhammer, in conjunction with Dr. Jackson, has adequately 

treated claimant's condition and has devised an appropriate 

treatment plan. 

 Because the medical records were subject to the commission's 

factual determination, we cannot find as a matter of law that 

employer's evidence met its burden of proof. Accordingly, we 

affirm the commission's decision. 

 Affirmed.