COURT OF APPEALS OF VIRGINIA
Present: Judges Elde r, Beales and Powell Argued at Alexandria, Virginia

UNINSURED EMPLOYER’S FUND MEMORANDUM OPINION * BY v. Record No. 0124-09-4 J UDGE RANDOLPH A. BEALES SEPTEMBER 8, 2009 FREDERICA WIREDU

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Douglas A. Seymou r (William V. Riggenbach ; Siciliano, Ellis, Duer & Boccarosse PLC, on brief), for appellant. W. David Falcon, Jr. (Chasen & Boscolo, P.C., on brief), for appellee.
The Uninsured Employer’s Fund appeals from a decision of the Workers’ Compensation Commission awarding temporary tota l disability benefits to Frederica Wiredu (claimant). The Fund contends that the commission erred in finding that the doctor who started treating claimant on March 10, 2008, was an authorized treating physician, erred in addressi ng the issue of that doctor’s authority to treat claimant, and erred in finding the evidence was sufficient to support an award of benefits after March 10, 2008. We find the commission did not err in this case.
BACKGROUND Frederica Wiredu (claimant) injured her hand and arm in a compensable workplace accident on October 16, 2007. Dr. St uart Davidson performed surger y on claimant’s right arm that same day, and he provided some post-surger y treatment for her. Claimant’s employer, South Valley Cleaners, Inc., did not have workers’ compensation insurance, but initially made

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - some direct payments to the hospital for her surgery and treatment. However, South Valley Cleaners stopped making payments to the hospi tal around November 2007, when claimant hired an attorney to help her with her workers’ compensation claim. On January 14, 2008, claimant went to Dr. Da vidson for treatment, and he indicated in his notes that claimant had “imp roved substantially.” However, he did not indicate that she was released to return to work. Hi s notes indicated that he intended to see her again in six to eight weeks. On a form mailed by claimant’s attorney , Dr. Davidson agreed that claimant was totally disabled from October 16, 2007, through January 14, 2008. He was not asked to express an opinion about her ability to work after January 14, 2008. 1 Claimant did not receive any treatment from Dr. Davidson after January 14, 2008. She stopped seeing Dr. Davidson “[b]ecause [she] went over there about four times” and Dr. Davidson told her that he could not see her again “because [her] manager wasn’t paying the bills.” On March 10, 2008, claimant began receiving treatment from Dr. Eric Dawson, but she did not file any paperwork with the commissi on or her employer requesting a change in her treating physician. At th is point, claimant was no t receiving any benefits. Dr. Dawson found that claimant was totall y disabled by her workplace injuries and continued to fill out slips indicating that she was not released to return to work for her to give to her employer. The doctor also recommended a ne rve study to help assess her continuing pain. Claimant testified that Dr. Dawson said she was totally disabled. The deputy commissioner awar ded claimant temporary total disability benefits from October 16, 2007 through January 14, 2008. In doi ng so, the deputy “adopt[ed] the medical findings of Dr. Davidson,” but “accord[ed] little weight to the medical records of Dr. Dawson”

1 The Fund does not appeal the benefits awarded to claimant for temporary total disability prior to January 14, 2008.- 3 - and noted that claimant began seeing him “w ithout any apparent referral and for no clear reason.” Claimant appealed the deputy commis sioner’s decision denying he r disability benefits from March 10, 2008, and continuing. The full commission reversed the deputy’s decision, finding Dr. Dawson became claimant’s treating physician, a nd, therefore, his opinion was “enti tled to great weight.” The Fund now appeals the award of benefits starting on March 10, 2008, and continuing.
ANALYSIS The three issues raised by the Fund esse ntially argue the same point – that the commission should not have considered the evidence from Dr. Dawson, which was the only evidence that supported an award to claimant. We conclude that the commission did not err in considering this evidence. A. Full Commission’s Review of the Deputy Commissioner’s Ruling Initially, the Fund argues that the commission ha d no authority to reconsider the deputy’s finding regarding Dr. Dawson. However, neither the Fund nor South Valley Cleaners made this objection before the commission, but instead simply argued that Dr . Dawson was not the authorized treating physician and was not credible. On appeal, we review the final decision of the full commission, not the decision of the deputy commissioner. Code § 17.1-405(2). Ther efore, as the Fund did not object to the commission’s review of the deputy’s sua sponte ruling on Dr. Dawson, 2 it did not preserve this argument for appeal. See Rule 5A:18; Commonwealth v. Bakke , 46 Va. App. 508, 516, 620 S.E.2d 107, 111 (2005) (noting that Rule 5A:18 bars review of issues not presented to the commission). Moreover, in her appeal to the commission, claimant cl early noted that she

2 The Fund did not argue before the deputy that Dr. Dawson was not an authorized treating physician.- 4 - objected to the deputy’s decision to ignore “the reports of Dr. Dawson,” and she presented this argument in her brief to the commission. Ther efore, this issue cl early was before the commission. See Classic Floors, Inc. v. Guy , 9 Va. App. 90, 94, 383 S.E.2d 761, 763 (1989) (noting that the commission can determine the sc ope of its review on the issue raised by the appealing party).
B. Dr. Dawson A claimant can change her treating physician for any one of a number of reasons, and she can effect that change in a number of ways. See Food Lion, LLC v. Wright , 53 Va. App. 23, 26-27, 668 S.E.2d 814, 815-16 (2008). The commission can approve a change when the claimant provides a reasonable justification fo r using a different doctor, such as when the original physician is no t providing adequate care or when an employer fails to pay for adequate

care. See id. at 27, 668 S.E.2d at 815; see also Code § 65.2-603(C). Here, the unrebutted evidence proved that employer was not paying Dr. Davidson, so he refused to continue treating claimant. Her em ployer’s own testimony proved that South Valley Cleaners had stopped paying for her medical care. This circumstance is exactly the type of situation where a claimant should be allowed to see a different doctor – where her original treating physician refuses to treat her, her employer will not pa y her medical bills, and employer does not have workers’ compensatio n insurance. Claimant had no other option if she wanted to receive medical treatment. Th erefore, she had a reasonable justification for changing to Dr. Dawson. Thus, the commission did not err in considering his testimony and giving it great weight. See Pilot Freight Carriers, Inc. v. Reeves , 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986) (noting a treating physician’ s opinion should weigh heavily ag ainst conflicting evidence).- 5 - C. Sufficiency of the Evidence “[T]he function of the appellate court, when reviewing the sufficiency of the evidence, is to determine whether there was credible eviden ce presented such that a reasonable mind could conclude that the fact in issue was proved.” Westmoreland Coal Co. v. Campbell , 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988). In this case, “[ t]his Court must defer to the commission’s findings because they are based on [a doctor’s] reports and other credible evidence in the record.” Leadbetter, Inc. v. Penkalski , 21 Va. App. 427, 433, 464 S.E.2d 554, 557 (1995) (en banc). Here, Dr. Dawson, her treating physician, found claimant was totally disabled after March 10, 2008. Although the Fund contends that Dr . Davidson released claimant to return to work, nothing in the record supports that cl aim. Dr. Davidson found claimant was totally disabled through the time he last met with her. He did not release her to return to work. He never made any comment on her medical conditi on after January 14, 2008. Thus, Dr. Dawson’s medical opinion regarding claimant’s disability after March 10, 2008, is un rebutted and credible.
See Pilot Freight Carriers, Inc. , 1 Va. App. at 439, 339 S.E.2d at 572. In fact, even if Dr. Dawson were not her primary treating physic ian, his medical opinion would continue to carry great weight here because it is unrebutted. While Dr. Dawson had not identified the specific reason for her continuing problems, he positively and without hesitation found that she was to tally disabled. Claimant also testified that Dr. Dawson found she was totally disabled, a nd nothing in the record suggested that Dr. Dawson’s opinion changed. Therefore, we find the commission did not err in awarding temporary total disability benefits to claima nt from March 10, 2008 and continuing. Certainly, a rational factfinder could find sufficient evidence in the record to suppor t that conclusion. See Westmoreland Coal Co. , 7 Va. App. at 223, 372 S.E.2d at 415.- 6 - CONCLUSION For the foregoing reasons, we affirm the co mmission’s award of benefits to claimant. Affirmed.