COURT OF APPEALS OF VIRGINIA

Present: Chief Ju dge Huff, Judges A lston and Russell Argued at Richmond, Virginia

HOWARD WELLS MEMORANDUM OPINION * BY v. Record No . 1369-17-4 CHIEF J UDGE GLEN A. HUFF FEBRUARY 20, 2018 AUTOMOTIVE SERVICE GARAGE AND GRAPHIC ARTS MUT UAL INSURANCE CO.

FROM THE VIRGINIA WORKERS ’ COMPENSATION COMMISSION David Rosenblum (Rosenblum & Rosenblum, LLC, on brief), for appellant. Amanda Tapscott Belliveau (Andr ew Elliot Sassoon; McCandlish Holton Morris, P.C., on brief), for appellees.

Howard Wells (“claimant”) appeal s the decision of the VirginiaWorkers’ Compensation Commission which upheld the deput y commissioner’s denial of cla imant’s request for authorization of further medical treatment and a change in trea ting physician. On appeal, claimant argues that the Com mission erred by finding that the a dditional treatment sought was not causally related to his orig inal compensable injury, and by refusing his request for a change of treating physician. He also c laims that the Commission erre d by failing to award him attorney’s fees and deposition costs. For the following reason s, this Court affirms the Commission’s rulings.
I. BACKGROUND “On appeal, we view the eviden ce in the light most favorable t o the prevailing party before the [C]ommission.” Por tsmouth Sch. Bd. v. Harris, 58 Va . App. 556, 559, 712 S.E.2d 23,

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - 24 (2011) (quoting Central Va. Obs tetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va. App. 264, 269, 590 S.E.2d 631, 634 (2004)). So viewed, the evidence is as follows. Claimant suffered an accident at work on April 20, 2012, susta ining injuries to his spine, wrist, and left foot. His employe r, Automotive Services Garage , and its insurance carrier (collectively “employer”) accepted the injuries as compensable and the Commission entered an award order on May 25, 2012. Claimant began seeing Dr. Ramesh G. Chandra (“Chandra”) soon after the accident, and after a period of conservative treatmen t, Chandra recommended surgery to repair a fracture of the fifth metatarsal on his left foot. He performed the surgery on November 27, 2012, after which claimant underwent a course of physical therapy. On February 4, 2013, claimant reported to Chandra th at he was experiencing increased pain in his foot, and after reviewing new x-rays, Chandra dete rmined that a screw placed du ring the first surgery was backing out. He recommended an additional surgery to remove th e hardware, which he performed on March 21, 2013. Follo wing this second surgery, cl aimant completed additional physical therapy and eventually pr ogressed to the point of wear ing normal footwear and ambulating with minimal pain. At an examination on April 15, 2013, Chandra noted that claima nt was walking normally, had full range of motion and stren gth in all ankle muscle group s, and had minimal pain and no swelling in his foot. He release d claimant to full duty at wor k. Following a final follow-up exam on May 13, 2013, Chandra confirmed that the fracture had h ealed with good alignment, notified claimant that he had met all treatment targets and goa ls, and advised claimant to continue his home exercise pr ogram with follow-ups only as need ed. According to later testimony from his supervisor, claimant per formed his normal duties at work from the time of his return in April of 2013 until June of 2014. During that time, he wore normal shoes and moved around without assistive devices. The s upervisor testified that claimant- 3 - did not limp or move about abnor mally and that he did not compl ain of any pain that interfered with his ability to per form his work duties. On June 8, 2014, claimant was involved in a car accident in hi s personal vehicle and received hospital treatment for injuries to his head, neck, sho ulder, elbow, and hip. Numerous doctors and a chiropractor treat ed claimant’s injuries in the a ccident’s aftermath. On July 15, 2014, claimant underwent an indepe ndent medical evaluation withorthopedist Dr. Louis Levitt (“Levitt”), who evaluated a number of complaints related to his back and knees and took x-rays of his left foot. Levitt’s report noted that claimant’s left f oot had healed normally, that he had reached maximum medical improveme nt for the left foot fracture in 2013, and that he needed no further treatment for his left foot beyond that time. Levitt a lso noted that claimant did not disclose his June 8, 2014 car acciden t in the course of the exa mination. In 2015 and 2016, claimant sought a series of independent medi cal examinations pursuant to a pending personal inju ry claim. Dr. Matthew Ammer man (“Ammerman”), a neurologist, examined claimant on May 26, 2015, and appellant r eported foot pain, back pain, and knee pain which he attribut ed to his accident from 2012. A mmerman addressed his back pain and recommended pain managem ent treatments to deal with it . Ammerman noted that claimant’s back pain was likel y aggravated by gait problems ari sing from foot pain and knee pain. Claimant also did not inform Ammerman of his 2014 accide nt. Dr. Kenneth Ward (“Ward”) examined claimant on November 2, 2015 and conducted an extensive records review. He noted that claimant was using acane at that time and report ed tenderness and pain in his left foot. Ward’s final report t ook note of Chandra’s indication th at the fracture in claimant’s foot was healed in 2013 and opined that “c ontinued dysfunction after a healed fifth metatarsal fracture is an unlikely scenario.”- 4 - Claimant underwent additional independent medical examinations on March 9 and 10, 2016. At his March 9, 2016 examinati on with podiatrist Dr. Gary Feldman (“Feldman”), claimant alleged that he had b een suffering pain in his left fo ot for almost four years, dating back to the 2012 work accident, and presen ted MRI studies for Feldma n to review. At his March 10, 2016 exam with orthopedist Dr. Ba rry Boden (“Boden”), claimant reported back, hip, and knee pain ongoing since the 2012 accident. Boden administered a cor tisone injection in claimant’s left knee and opined that claimant might need a knee replacemen t at some point. Once again, claimant informed neither Feldman nor Boden about his 2014 acci dent so neither of their reports mentions it. The claims at issue in this a ppeal were filed in March and Nov ember of 2016, and an evidentiary hearing took place before a deputy commissioner on February 15, 2017. Claimant testified on his own behalf and offe red into evidence the repor ts from Ammerman, Boden, and Feldman. Claimant also submitted a deposition taken of Chandra . Claimant testified that he sought treatment from Chandra in late 2013 for continuing pain in his foot, but that the “front office staff” in Chandra’s office informed him that the insuran ce carrier had refused treatment. Claimant was unable to provide details of his contact with Chan dra’s office, and Chandra provided conflicting testimony i n his deposition on the issue o f whether claimant had ever contacted his office. Claimant te stified that this refusal of service forced him to seek treatment from Boden and Feldman and forme d the basis of his request for a change in treating physician. Claimant acknowledged upon cross-examination that he did not in form Doctors Boden or Feldman of his 2014 accident. Employer submitted questionnaires completed by Chandra indicat ing that claimant’s left foot fracture had completely heal ed by the time he was returned to work in April of 2013.- 5 - Employer also relied upon testimo ny from claimant’s work superv isor, Chandra’s records, and Levitt’s opinion that claimant’s f racture was healed and asympt omatic as late as July 15, 2014. After weighing the conflicting m edical evidence and testimony, the deputy commissioner ruled that claimant’s requested treatment was not causally rela ted to his compensable accident from 2012. As such, a change of phys ician was not warranted. The deputy commissioner also ruled that claimant was not ent itled to attorney’s fees or reim bursement for Chandra’s deposition because Rule 1.8(G) did not apply. Claimant requested review b y the full Commission, which affirmed the deputy commissi oner’s rulings on August 4, 2017. This appeal followed.
II. STANDARD OF REVIEW On appeal, the factual findings of the Commission are binding on this Court “if those findings are supported by credible evidence in the record.” Ru sty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 131, 510 S.E.2d 255, 261 (1999) ( en banc ). “In determining whether credible evidence exists, the a ppellate court does not retry th e facts, reweigh the preponderance of the evidence, or make its own de termination of the credibili ty of the witnesses.” Id. Although this Court defers to the Commission’s factual finding s, its “legal determinations are not binding on appeal, and will be reviewed de novo .” Starbucks Coffee Co. v. Shy, 61 Va. App. 229, 238, 734 S.E.2d 683, 688 (2012) (quoting Wainwrig ht v. Newport News Shipbuilding & Dry Dock Co., 50 Va. App. 421, 430, 650 S.E.2d 5 66, 571 (2007)). When those conclusions arise from constructi on of the Workers Compensation Act (“the Act”) or its own rules, “[t]he Commission’s construction . . . is entitled to gr eat weight on appeal.” Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 675, 508 S.E.2d 335, 34 1 (1998).
III. ANALYSIS Claimant asks this Court to res olve three issues: the causal relationship between his requested treatment and the orig inal compensable injury, his re quest for a new physician, and his- 6 - request for deposition costs a nd attorney’s fees. This opinion discusses each in turn, starting with causation. A. Causation Code § 65.2-603 requires that emplo yers furnish for “as long a s necessary after an accident” a physician and “such other necessary medical attenti on . . . as the nature of the injury may require.” Although any injured worker is entitled to treat ment under an award of the Commission, the burden always falls to the claimant to prove that “the me dical attention, for which payment is claimed under [Code § 65.2-603], was causally related to the industrial accident.” Watkins v. Halco Engineering, Inc., 225 Va. 97, 101 , 300 S.E.2d 761, 763 (1983). When confronted with such a claim , “[t]he Commission’s determin ation regarding causation is a finding of fact.” Marcus v. Ar lington County Bd. of Supervisor s, 15 Va. App. 544, 551, 425 S.E.2d 525, 530 (1993). In this case, claimant’s evidence that his recurring foot pain was causally connected to his original injury was insufficien t to convince the Commission. C laimant’s original treating physician, Chandra, reported that h is fracture was completely h ealed and returned claimant to full duty on April 15, 2013. Although cla imant alleged that he sought treatment for continuing foot pain from Chandra “about f our months” after that, the cont act is disputed. Levitt stated in his report from July 2014 that cl aimant’s foot appeared complet ely healed and he had no symptoms of foot pain or dysfunc tion. Ammerman’s report from c laimant’s visit in 2015 contains the first documentati on of renewed foot pain after Cha ndra released claimant to full duty. Feldman and Boden describe ongoing foot pai n in their re ports, but their examinations were based on incomplete and inacc urate medical histories. Med ical evidence was in conflict. When the Commission hears conflic ting medical evidence, “[q]ue stions raised by conflicting medical opinions must be decided by the [C]ommissio n.” Penley v. Island Creek- 7 - Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). The Commission evaluated all the medical evidence regarding the condition of claimant’s foot, gi ving particular weight to the opinion of Chandra—claimant’s pr imary treating physician—becaus e “the opinion of the claimant’s treating physician is ordinarily given great weight. ” Pilot Freight Carriers v. Reeves, 1 Va. App. 435, 439, 399 S.E.2d 570, 572 (1986). The Commissio n determined that the opinions of Feldman and Boden were insufficient to overcome the opinions of Levitt, Ward, and Chandra, and concluded that the treatment claimant requested was not cau sally related to the compensable injury. Claimant alleges that the C ommission did not give sufficient w eight to particular pieces of evidence, but on review this C ourt does not “retry the facts , reweigh the preponderance of the evidence, or make its own determination of the credibility of t he witnesses.” Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 3 2, 35 (1991). Such determinations are best made by the Commission, which, like a t rial court, is in the best position to do so. “The fact that there is contrary evide nce in the rec ord is of no consequence [to this Court’s review] if there is cr edible evidence to support the [C ]ommission’s finding.” Id. There is credible evidence in the reco rd to support the Commission’s conclusion. Accordingly, this Court will not disturb it. B. Change in Treating Physician Appellant’s claim for a change in treating physic ian is insepa rably linked to the question of causation regarding his cu rrent symptoms. Code § 65.2-603(A )(1) states that once an employee has chosen a physician from the panel of three provide d by the employer, any change must be approved by the employer or the Commission. The party seeking the change bears the burden of proving that specific circ umstances warrant it. Appl e Constr. Corp. v. Sexton, 44 Va. App. 458, 461, 605 S.E.2d 351, 352 (2004). The Commission and this Court have found a- 8 - variety of circumstances that might justify a change in physici an, including inadequate treatment, the need for treatment by a sp ecialist that is not being provid ed, or lack of improvement in the underlying condition. Id. (quoting Allen & Rocks, 28 Va. App. at 676, 508 S.E.2d at 341). In Apple Construction, the empl oyer sought a change in treatin g physician in order to avoid paying travel expenses for the claimant to continue treat ment with his origin al doctor after he moved. The Commission found, and t his Court affirmed, that the employer’s claims that a closer doctor would be better for the claimant fell “far short of qualifying as an axiom of law” and that the employer—in that ca se the party requesting the cha nge—failed to provide sufficient factual support that any of the conditions described in Allen & Rocks had been met. Id. In this case, claimant coul d not prove that any of the conditi ons justifying a change in physician had been met because he did not prove the causal conn ection between his compensable injury and any required further treatment. The Commission righ tly determined that claimant could not prove that he was rece iving inadequate treatment, or needed a different specialist, or that his treatment was not progressing, because the available e vidence showed that his compensable foot injury had r esolved completely through Chandra ’s care in 2013. Accordingly, the Commission found that claimanthad failed to carry his burd en of proof that a change in physician was necessary. This conclusion was also supported bycredible evidence, and will not be disturbed by this Court. C. Award of Attorney’s Fees and Costs Claimant sought an award of atto rney’s fees or, at minimum, re imbursement for the cost of deposing Chandra. The Commi ssion, or any court before whom proceedings under the Act are brought, may award attorney’s fees and costs to the claiman t if the employer or insurer defends a claim without r easonable grounds. Code § 65.2-713. Costs of depositions may be included in such an award, according to Code § 65.2-703. Furth ermore the Commission’s- 9 - Rule 1.8(G) allows for depositi ons of an attending physician to be taken, at employer’s expense, if the physician “has no t prepared written re ports which are su fficient to answer questions concerning . . . causation,” am ong other things. Rule 1.8(G) w as designed to “give claimants an ability to obtain at the employers ’ expense complete informatio n and opinions from . . . physicians who fail to provide ” this information. Nichols v. Ge neral Parts, Inc., VWC No. 229-57-35, 2007 VA Wrk. Comp. LEX IS 1811, at *4 (VA Wrk. Comp. Apr. 17, 2007) (emphasis added). Any award of attorney’s fees and c osts under the Act is “left to the sound discretion of the Commission. [This Court] will not disturb the administrati ve assessment of costs or attorney’s fees unless there is an abuse of discretion.” Lynch burg Foundry Co. v. Goad, 15 Va. App. 710, 715, 427 S.E.2d 215, 218-19 (1993) (quoting Jense n Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525-26 (1985)). On review, this Court giv es “great deference to the interpretation given by the [C] ommission to its rules. ‘Consequently, our review is limited to a determination whether the [C]o mmission’s interp retation of its own rule was reasonable.’” Arellano v. Pam E. K’s Donuts Shop, 26 Va. App. 478, 483, 495 S .E.2d 519, 521 (1998) (quoting Classic Floors , Inc. v. Guy, 9 Va. App. 90, 93, 383 S. E.2d 761, 763 (1989)). In the case at bar, the Commi ssion declined to award fees and costs to the claimant. The Commission found the employer’s defenses to be reasonable becau se they were successful. The Commission also found that Rule 1.8(G) did not apply because th e attending physician, Chandra, provided adequate information via written answers to the questi onnaires he was given, as well as extensive opinions noted in the medical records submitted to th e Commission. Although a claimant may request clarifica tion of answers on questionnaires via interrogatories or a deposition, the employer is not obliged to pay for such clarifi cation. Id. Deposition costs are only awarded to claimants when the doctor in qu estion is uncoop erative, and in this case Chandra- 10 - cooperated in every possible wa y. The Commission’s decision no t to award attorney’s fees or the costs of the deposition i n question was in keeping with its own prior decisions and reflects a reasonable interpretation of its own rules. Accordingly, this Court finds that the Commission acted within its discretion and t herefore affirms its decision.
IV. CONCLUSION The Commission’s factual determ ination that claimant’s request ed treatment was not causally related to his original compensable injury, and its su bsequent finding that a change in physician was unwarranted, were not plainly wrong and were supp orted by credible evidence. Furthermore, the Commission act ed within its discretion by refu sing to award claimant attorney’s fees and deposition costs. Therefore, this Court af firms the Commission’s opinion in its entirety. Affirmed.