COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

COX CABLE HAMPTON ROADS 

AND 

BIRMINGHAM FIRE INSURANCE MEMORANDUM OPINION*

 COMPANY OF PENNSYLVANIA PER CURIAM 

 JULY 8, 1997 

v. Record No. 0329-97-1 

JAMES BOWMAN 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Susan B. Potter; Vandeventer, Black, 

Meredith & Martin, on brief), for appellants. 

 (M. Todd Gerber; Joynes & Bieber, on brief), 

for appellee. 

 Cox Cable Hampton Roads (employer) contends that the 

Workers' Compensation Commission (commission) erred in refusing 

to order a change in James Bowman's treating physician. 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. Rule 5A:27. 

 Code § 65.2-603 provides that an employer must furnish an 

injured employee reasonable and necessary medical treatment free 

of charge. The commission is authorized to order a change in 

treating physicians. See Code § 65.2-603. However, the 

commission found that the evidence failed to demonstrate a need 

to change Bowman's treating physician. 

 

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

designated for publication. 
 2 

 "General principles of workman's compensation law provide 

that '[i]n an application for review of any award on the ground 

of change in condition, the burden is on the party alleging such 

change to prove his allegations by a preponderance of the 

evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 

459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight 

Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 

572 (1986)). 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 

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 addition, the 

commission's finding is binding and conclusive upon us, unless, 

as a matter of law, the employer's evidence sustained its burden 

of proof. See Tomko v. Michael's Plastering Co., 210 Va. 697, 

699, 173 S.E.2d 833, 835 (1970). 
 3 

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

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

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

Viewing the evidence in that light, we are unable to conclude, as 

a matter of law, that the employer sustained its burden of proof. 

 To the contrary, the evidence showed that Dr. Long has rendered 

adequate treatment; he has provided Bowman with various treatment 

options; and he adequately explained Bowman's lack of progress in 

light of the complexity of his back problem. No evidence proved 

that Dr. Long refused to cooperate with employer's discovery 

requests or that he failed to use conventional modalities of 

treatment. In addition, although Dr. Long opined that Bowman 

might benefit functionally from a special physiatrist's program, 

he admitted that such a program would probably not relieve 

Bowman's severe pain, the overriding obstacle preventing his 

return to work. 

 Dr. Long opined that Bowman is restricted from working due 

to his intractable pain and recommended that Bowman limit his 

activities to those that are tolerable. Dr. Long also opined 

that Bowman's condition will probably remain the same and 

concurred with the opinion of Dr. Bruce Mathern, who examined 

Bowman at employer's request, that because of Bowman's structural 

instability, external bracing and physical therapy would probably 

not improve his condition. Dr. Mathern encouraged Bowman to 

maintain his "longstanding relationship with Johns Hopkins" and 
 4 

Dr. Long. 

 For these reasons, we affirm the commission's decision. 

 Affirmed.