COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Overton 

Argued at Salem, Virginia 

SANDRA T. JOHNSON 

v. Record No. 0124-95-3 MEMORANDUM OPINION* BY 

 JUDGE NELSON T. OVERTON 

CRACKER BARREL OLD COUNTRY STORE DECEMBER 12, 1995 

AND 

LIBERTY MUTUAL INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Terry L. Armentrout (Roger Ritchie & 

Partners, P.L.C., on brief), for appellant. 

 J. Ross Newell, III (Thomas G. Bell, Jr.; 

Timberlake, Smith, Thomas & Moses, P.C., on 

brief), for appellees. 

 

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

designated for publication. 

 Sandra Johnson appeals from the commission's opinion 

ordering her to choose a new treating physician. She contends 

that the commission (1) erred in ordering her to change 

physicians without giving her notice and an opportunity to defend 

 and (2) lacked authority to order a change of physicians on its 

own motion. We vacate the order of the commission. 

 Johnson injured her back while working for Cracker Barrel. 

Cracker Barrel did not supply her with a panel of physicians 

within the statutorily required time period, and Johnson 

independently sought the services of Dr. Pleskonko, a 

chiropractor. Two months later, Cracker Barrel requested that 

Johnson choose a physician from its offered panel. Johnson 
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refused. Cracker Barrel filed an application for hearing raising 

the issue of whether Dr. Pleskonko was an authorized physician. 

 The deputy commissioner found that the employer had not 

timely offered a panel of physicians and that Johnson was 

entitled to receive treatment from Dr. Pleskonko. However, the 

deputy commissioner ordered Johnson to select a physician from a 

new panel to be offered by the employer because of "concern over 

[Dr. Pleskonko's] type of maintenance treatment." The commission 

affirmed the decision, and allowed Dr. Pleskonko's expenses up to 

the date of the hearing. However, the commission also ordered 

the employer to offer a new panel of physicians and ordered 

Johnson to select one as her treating physician. 

 The commission does have statutory authority to order a 

change in physicians. The relevant portion of the Code states: 

 As long as necessary after an accident, the 

employer shall furnish or cause to be 

furnished, free of charge to the injured 

employee, a physician chosen by the injured 

employee from a panel of at least three 

physicians selected by the employer and such 

other necessary medical attention. . . . The 

employee shall accept the attending 

physician, unless otherwise ordered by the 

commission, and in addition, such surgical 

and hospital service and supplies as may be 

deemed necessary by the attending physician 

or the commission. 

Code § 65.2-603(A)(1). We do not believe that an expansive 

reading of the statute is required to conclude that upon proper 

application and in appropriate circumstances the commission may 

order a claimant to change physicians. Indeed, the commission 
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itself has stated that it will order a change in circumstances if 

(1) inadequate treatment is being rendered; (2) it appears that 

specialized treatment is necessary and not being provided; (3) no 

improvement in the health condition is being made without an 

adequate explanation; (4) conventional modalities of treatment 

are not being used; (5) no plan of treatment for long-term 

disability exists; or (6) a physician fails to cooperate with 

discovery proceedings. Powers v. J.B. Constr., 68 O.I.C. 208, 

211 (1989) (construing § 65.1-88 (now § 65.2-603)). 

 In this case, however, the employer did not request that the 

commission order a change in physicians. Thus, Johnson had no 

notice from either the employer or the commission that the issue 

of change in physicians was to be considered. Johnson was 

entitled to the opportunity to be heard and present evidence 

before having such a change made. Cf. Celanese Fibers Co. v. 

Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 689-90 (1985) 

(refusing to consider an issue not stated in the application). 

"An elementary and fundamental requirement of due process in any 

proceeding which is to be accorded finality is notice reasonably 

calculated, under all the circumstances, to apprise interested 

parties of the pendency of the action and afford them an 

opportunity to present their objections." Oak Hill Nursing Home, 

Inc. v. Back, 221 Va. 411, 417, 270 S.E.2d 723, 726 (1980) 

(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 

306, 314-15 (1950) (citations omitted)). 
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 In response to the actual question posed by the employer, 

the commission ordered that Dr. Pleskonko be paid for his 

services until the date of the deputy commissioner's hearing, 

deeming him to be an authorized physician. As such, Dr. 

Pleskonko remains the authorized physician because his removal 

has been vacated by this order, subject to future motions by the 

parties and the orders of the commission. 

 Accordingly, we hold that the commission erred in changing 

Dr. Pleskonko's status as an authorized physician without first 

giving notice to Johnson and providing her an opportunity to 

defend against the change. See Sergio's Pizza v. Soncini, 1 Va. 

App. 370, 375-76, 339 S.E.2d 204, 207-08 (1986) (discussing 

proper notice of an issue). We therefore vacate the commission's 

decision and remand for such further actions as the parties to 

the proceeding and the commission may elect. 

 Reversed and remanded.