COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

JUDITH BROWN MACICA 

 OPINION BY 

v. Record No. 2111-96-1 JUDGE JOSEPH E. BAKER 

 NOVEMBER 10, 1997 

ARA SERVICES TIDEWATER VENDING 

and 

RELIANCE INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Ralph E. Lawrence for appellant. 

 Arthur T. Aylward (Midkiff & Hiner, P.C., on 

brief), for appellees. 

 Judith Brown Macica (claimant) appeals from a decision of 

the Virginia Workers' Compensation Commission (commission) that 

denied her request for Dr. Arthur R. Sonberg to be designated as 

her treating physician for her on-the-job injuries sustained on 

August 8, 1989 while in the employ of ARA Services Tidewater 

Vending. ARA Services Tidewater Vending and Reliance Insurance 

Company (jointly referred to herein as ARA) cross-appeal from the 

commission's findings that (1) claimant had cured her earlier 

refusal to follow the treatment recommendations of her already 

designated treating physician, Nathan D. Zasler, and (2) 

claimant's refusal to select a new panel physician during the 

pendency of her request to change treating physicians did not 

constitute a refusal of medical treatment under Code 

§ 65.2-603(B). Finding no error, we affirm the commission's 

decision. 
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 Although claimant may have misunderstood some of Dr. 

Zasler's recommendations for treatment, the applicable facts are 

not in dispute. Those facts are here stated in the light most 

favorable to the party prevailing on the issues from which this 

appeal emanates. See States Roofing Corp. v. Bush Constr. Corp., 

15 Va. App. 613, 616, 426 S.E.2d 124, 126 (1993). 

 Claimant sustained injuries in a fall on August 8, 1989, and 

ARA accepted those injuries as compensable. Claimant came under 

the care of Dr. James Allen, who performed cervical discectomy 

and fusion surgery in August 1989. Although claimant's condition 

improved after the surgery, she continued to complain of neck 

pain and other ailments. Thereafter, Dr. Allen declined to treat 

claimant further, and she eventually saw Dr. Zasler, who 

initially supported her inability to work. Later, Dr. Zasler 

concluded that claimant's complaints might be due to "significant 

psychoemotional factors effecting physical symptoms." Dr. 

Zasler's December 16, 1994 progress notes disclosed a plan to 

refer claimant for (1) a neurosurgical opinion, (2) 

neuropsychological testing, and (3) psychiatric consultation. 

 Claimant was seen by the neurosurgeon, but failed to 

complete the neuropsychological testing or psychiatric 

consultation. On March 27, 1995, by letter to claimant, Dr. 

Zasler indicated his intent to withdraw as her treating physician 

effective May 1, 1995, based upon her "inability to follow up 

with what [Zasler] consider[ed] medically necessary care." He 
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recommended that she continue under the care of a doctor, but 

deferred the choice of physician to ARA. 

 Claimant's attendance at the initial neuropsychological 

testing sessions with Dr. Karen Haskett was "sporadic" and 

hindered by her claim of tiring easily. However, after she and 

her husband were informed on March 24, 1995 of the importance of 

her timely completion of the testing and the fact that she would 

be charged for future missed visits, "her attendance . . . was 

'fairly good' except for March 30, 1995, when [claimant's] 

granddaughter was born." Testing was completed after additional 

sessions on March 28, 29, and 31, April 5, 10, and 19, and May 3, 

1995. 

 In regard to Dr. Zasler's recommended psychiatric 

evaluation, claimant testified that she and her husband tried to 

schedule an appointment with Dr. Yaacov Pushkin beginning in 

March 1995. Her evidence indicated that Dr. Pushkin's office 

would not schedule an appointment until claimant had spoken 

directly with Dr. Pushkin, which occurred on April 5, 1995. 

Claimant's appointment, initially set for May 5, 1995, was 

postponed several times due to no fault of claimant's, and her 

psychiatric evaluation was completed on July 27, 1995. 

 On March 29, 1995, ARA filed an application for hearing, 

asserting that claimant had refused the treatment recommended by 

Dr. Zasler in December 1994. At the time, as set forth above, 

claimant had not scheduled a psychiatric appointment and had not 
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completed neuropsychological testing. Claimant opposed ARA's 

request for hearing, advised the commission that Dr. Zasler had 

withdrawn as claimant's physician, and requested that the 

commission designate Dr. Sonberg as her treating physician. 

Claimant saw Dr. Sonberg beginning December 27, 1994. Copies of 

his reports on claimant's condition were forwarded to the 

commission along with her request. In the letter to the 

commission, claimant advised that Dr. Zasler had directed that 

the three specialists be seen in sequence. Dr. Zasler denied 

that he had given that direction. 

 Upon receipt of a copy of Dr. Zasler's letter of withdrawal, 

ARA prepared a panel of three new treating physicians from which 

claimant could choose. Dr. Sonberg was not one of the three, and 

by letter of May 17, 1995, claimant refused to select from the 

panel. On August 4, 1995, ARA filed an additional claim that 

claimant's refusal to select a new panel physician constituted 

refusal of medical treatment. Claimant countered with a request 

for payment for Dr. Sonberg's services. 

 After a hearing, the commission affirmed the deputy's 

finding that as of March 29, 1995, claimant cured her refusal to 

follow Dr. Zasler's recommendations and that filing the request 

to have Dr. Sonberg designated as her treating physician rather 

than choosing a new panel physician was not a refusal of medical 

treatment. However, the commission declined to designate Dr. 

Sonberg as her treating physician and directed ARA to again offer 
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the panel of physicians previously tendered to claimant. 

 "On appellate review, we must construe the evidence in the 

light most favorable to the party prevailing below." States 

Roofing Corp., 15 Va. App. at 616, 426 S.E.2d at 126. "If there 

is evidence, or reasonable inferences can be drawn from the 

evidence, to support the Commission's findings, they will not be 

disturbed on review, even though there is evidence in the record 

to support a contrary finding." Morris v. Badger Powhatan/Figgie 

Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). 

"In determining whether credible evidence exists, the appellate 

court does not retry the facts, reweigh the preponderance of the 

evidence, or make its own determination of the credibility of the 

witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 

894, 407 S.E.2d 32, 35 (1991). 

 In the event of a compensable work related 

injury, Code § [65.2-603] provides that the 

employer shall furnish free of charge to the 

employee a physician of his choice from a 

panel of at least three physicians and the 

attendant medical costs. If no panel of 

physicians is offered to the employee, he or 

she is free to select his [or her] own 

physician. 

Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App. 120, 128, 384 

S.E.2d 333, 337-38 (1989) (decided under former Code § 65.1-88). 

 However, once the selection is made, the employee may not seek 

the treatment of another physician "'unless referred by [the 

first] physician, confronted with an emergency, or given 

permission by the employer and/or its insurer or [the] 
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Commission.'" Davis v. Brown & Williamson Tobacco Co., 3 Va. 

App. 123, 126, 348 S.E.2d 420, 421 (1986) (quoting Breckenridge 

v. Marval Poultry Co., 228 Va. 191, 194, 319 S.E.2d 769, 770-71 

(1984)) (decided under former Code § 65.1-88). 

 Here, ARA had offered a second panel of three physicians 

from which claimant could choose a new treating physician. ARA 

thereby complied with the requirements of Code § 65.2-603. 

Claimant was not referred to Dr. Sonberg by the treating 

physician and was not shown to have been confronted with an 

emergency or given permission by the employer, its insurer, or 

the commission to change treating physicians; therefore, we 

cannot say that the commission erred when it denied claimant's 

request to have Dr. Sonberg designated as her treating physician. 

See Davis, 3 Va. App. at 126, 348 S.E.2d at 421. 

 The commission further found that claimant's actions after 

March 24, 1995 demonstrated an effort to follow Dr. Zasler's 

instructions and that, even if claimant previously had refused to 

follow his instructions, refusal was cured. Evidence in the 

record supports that decision. "Where reasonable inferences may 

be drawn from the evidence in support of the commission's factual 

findings, [those findings] will not be disturbed by this Court on 

appeal." Hawks v. Henrico Co. Sch. Bd., 7 Va. App. 398, 404, 374 

S.E.2d 695, 698 (1988). 

 In addition, the commission found that the mere filing of a 

petition to have another doctor become the treating physician, 
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and claimant's corresponding refusal to select a new panel 

physician during the pendency of that petition, were not per se a 

refusal of medical treatment justifying the suspension of 

benefits under Code § 65.2-603(B). Under the facts contained in 

this record, we cannot say that finding is reversible error as a 

matter of law. 

 For the reasons stated, the decision of the commission is 

affirmed. 

 Affirmed.