COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

ROBERT L. BROWN, SR. 

 MEMORANDUM OPINION*

v. Record No. 2051-98-2 PER CURIAM 

 FEBRUARY 16, 1999 

STEVEN W. JETT GENERAL CONTRACTOR 

 AND PENNSYLVANIA NATIONAL SECURITY 

 INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Robert L. Flax; Flax, Billy & Stout, on 

briefs), for appellant. 

 (Donna White Kearney; Taylor & Walker, on 

brief), for appellees. 

 Robert L. Brown, Sr. ("claimant") contends that the Workers' 

Compensation Commission ("commission") abused its discretion in 

denying his request for a change in treating physicians from 

Dr. E. Claiborne Irby, Jr. 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. See Rule 5A:27. 

 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). 

Whether a treating physician has released or abandoned his 

patient generally is determined by the express intent of the 

physician. In some cases, the total circumstances must be 

 

 *Pursuant to Code § 17-1.413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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analyzed in order to determine whether discharge, release, or 

abandonment of the patient was intended. This determination is a 

factual one which must be proved by clear and convincing 

evidence. See Jensen Press v. Ale, 1 Va. App. 153, 157, 336 

S.E.2d 522, 524 (1985). 

 In denying claimant's request for a change in treating 

physicians, the commission held that Dr. Irby's treatment and 

management of claimant's chronic condition was not inadequate, 

ineffective, unconventional, or excessive, and that it did not 

conflict with applicable standards of care. In so ruling, the 

commission found as follows: 

 Dr. Irby stands ready to provide conservative 

treatment for any aggravations to claimant's 

condition and has provided conservative 

treatment for claimant's chronic back 

condition. . . . Surgery is not a viable 

option for the claimant, and all the 

physicians indicate the claimant's condition 

is chronic and no further diagnostic studies 

are needed. . . . 

 Claimant complains that his back 

condition is exacerbated by the long trips to 

Dr. Irby's office, a trip that Dr. Irby has 

authorized by approving the claimant to drive 

for an hour and then rest and stretch for 

brief periods. While we acknowledge that the 

trips may not be pain free, unfortunately 

given the chronic nature of claimant's 

condition, claimant will probably not be free 

of pain. Additionally, there is no evidence 

that the trips are medically detrimental to 

the claimant. 

 Dr. Irby is a specialist in orthopedics 

and was requested by the claimant. The 

ninety-three mile distance to his office, 

while not short, is not unreasonable given 

the need for claimant to be monitored and 

treated for a chronic condition. We find no 

merit in claimant's contention that setting 

up appointments with Dr. Irby is unduly 
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difficult. The record reveals that Dr. 

Irby's office has taken care to reschedule 

missed appointments in a timely fashion. 

Finally, there is nothing in the record to 

justify the assertion that claimant is in 

need of narcotics for effective pain control. 

 The commission's factual findings are amply supported by the 

medical records and, therefore, will not be disturbed on appeal. 

Because claimant failed to present any clear and convincing 

evidence of abandonment or inadequate treatment by Dr. Irby, we 

cannot find as a matter of law that the commission erred in 

denying claimant's request for a change in treating physicians. 

 For these reasons, we affirm the commission's decision.1

 Affirmed. 

 

 1Appellee filed a "Motion to Exclude Appellant's Reply 

Brief." We deny that motion.