COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

KITCHIN EQUIPMENT COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 0652-95-1 JUDGE LARRY G. ELDER 

 NOVEMBER 28, 1995 

RONALD BIAFORE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Roger L. Williams (Vasiliki Moudilos; Williams 

 & Pierce, on brief), for appellant. 

 (John H. Klein; Rutter & Montagna, on brief), 

 for appellee. 

 Kitchin Equipment Company (employer) appeals from the 

commission's award of benefits to Ronald Biafore (claimant) for 

medical treatment provided by an internist consulted by claimant. 

 Employer contends the commission erred (1) in finding employer 

was responsible for the costs of treatment provided by the 

internist, and (2) in failing to determine whether treatment 

provided by claimant's treating physician was inadequate. For 

the following reasons, we affirm the commission's decision. 

 Claimant sustained a compensable left knee injury in an 

accident arising out of and in the course of his employment with 

employer on December 19, 1989.1

 Shortly after his injury, Dr. 

 

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

designated for publication. 

 1 A panel of this Court addressed the issue of whether 

claimant unjustifiably refused certain treatment in Biafore v. 

Kitchin Equip. Co. of Virginia, 18 Va. App. 474, 445 S.E.2d 496 

(1994). 
 2 

Michael Romash performed arthroscopic surgery for a tear of the 

medial meniscus on claimant's left knee. After continuing to 

experience physical difficulties, claimant was referred to his 

primary treating physician, orthopedic surgeon Dr. Lawrence 

Shall. After a course of treatment, during which claimant's 

condition did not improve, Dr. Shall surgically performed a 

surgical fat pad excision on claimant's knee on September 25, 

1990. Even after the surgery, Dr. Shall noted further aggressive 

surgery might be needed, informing claimant "the end stage 

procedure ultimately could be a fusion." 

 Because Dr. Shall felt claimant should first be cleared for 

the September 25, 1990 fat pad excision surgery, he instructed 

claimant to obtain a history and physical examination from his 

internist, Dr. Harvey Bercowitz. Unbeknownst to Dr. Shall, after 

surgery was performed on September 25, 1990, claimant continued 

to receive care from Dr. Bercowitz. Dr. Shall also referred 

claimant to Dr. Marcus Rice for a neurological evaluation, which 

was performed on March 12, 1991. Dr. Rice provided follow-up 

treatment in conjunction with Dr. Bercowitz, both doctors 

agreeing to keep claimant on a conservative course of treatment 

consisting of four different medications. Doctors Bercowitz and 

Rice each questioned the effectiveness of any further surgical 

procedures and instead explored these more conservative treatment 

options. 

 Deputy Commissioner Phillips found employer responsible for 
 3 

payment of treatment by Dr. Bercowitz. After the full commission 

affirmed the deputy commissioner's decision on February 27, 1995, 

employer appealed to this Court. 

 Well-settled principles of appellate review guide our 

decision in this case. When there is credible evidence to 

support the commission's decision, we must affirm the decision on 

appeal. Rucker v. Thrift Transf., Inc., 1 Va. App. 417, 419, 339 

S.E.2d 561, 562 (1986). Additionally, we must construe the 

evidence in the light most favorable to the party prevailing 

below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 

390 S.E.2d 788, 788 (1990). 

 As employer and the commission recognize, an employer is 

responsible for medical treatment provided by a medical care 

giver who is not a claimant's treating physician if: (1) the 

medical service was causally related to the industrial injury; 

(2) the additional medical attention was necessary; and (3) the 

treating physician made a referral to the patient. Volvo White 

Truck Corp. v. Hedge, 1 Va. App. 195, 200, 336 S.E.2d 902, 906 

(1985). 

 This Court has stated "[a]s long as necessary after an 

accident the employer shall furnish or cause to be furnished, 

free of charge to the insured employee, a physician . . . and 

such other necessary medical attention." Jensen Press v. Ale, 1 

Va. App. 153, 158, 336 S.E.2d 522, 525 (1985)(emphasis in 

original). Furthermore, an "employer's assertion that the 
 4 

referral was for evaluation only is of no consequence. Whether 

for evaluation or treatment or both, the purpose [of a referral 

is] to aid the attending physician in his continued treatment of 

the claimant." Id. (citing former Code § 65.1-88)(emphasis 

added). 

 In this case, it matters not that Dr. Shall purportedly 

limited his original referral to a preoperative evaluation. 

Instead, the referral's overall purpose was to aid Dr. Shall's 

continuing treatment of claimant's injury. The record reveals 

Dr. Bercowitz, after receiving the referral from Dr. Shall, 

supervised an on-going conservative and appropriate course of 

treatment. Both claimant and Dr. Bercowitz considered Dr. 

Bercowitz to be claimant's managing physician for at least three 

years. Dr. Shall never questioned the propriety of Dr. 

Bercowitz's continued and uninterrupted conservative treatment 

plan, which was effected in conjunction with Dr. Rice, another 

doctor to whom Dr. Shall referred claimant. 

 As a panel of this Court noted in Biafore v. Kitchin Equip. 

Co. of Virginia, 18 Va. App. 474, 445 S.E.2d 496 (1994), claimant 

received contradictory opinions from the various physicians from 

whom he received treatment. Claimant's choice of Dr. Bercowitz's 

conservative treatment plan was not unreasonable under the 

circumstances and most likely resulted in less cost to employer 

than would have further surgery. We see no reason, under the 

facts of this case, to hold employer is not responsible for the 
 5 

costs incurred by the continuing treatment from Dr. Bercowitz. 

Therefore, we decline to disturb the commission's findings in 

this regard. 

 Because we hold employer is responsible for claimant's 

medical treatment for the reasons stated above, we need not 

address employer's alternate argument of whether claimant proved 

Dr. Shall's treatment was inadequate. 

 Accordingly, we affirm the commission's decision. 

Affirmed.