____________________ 

 * Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Agee 

Argued at Alexandria, Virginia 

FAIRFAX COUNTY SCHOOL BOARD 

 

v. Record No. 1119-02-4 

 

SUSAN ELAINE MANOLA MEMORANDUM OPINION∗ BY 

 JUDGE ROSEMARIE ANNUNZIATA 

SUSAN ELAINE MANOLA JANUARY 28, 2003 

v. Record No. 1138-02-4 

FAIRFAX COUNTY SCHOOL BOARD 

 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Michael N. Salveson (Hunton & Williams, on 

briefs), for Fairfax County School Board. 

 Kathleen G. Walsh (Law Offices of Kathleen 

Walsh, on briefs), for Susan Elaine Manola. 

 The Fairfax County School Board ("employer") appeals the 

decision of the Workers' Compensation Commission ("commission"), 

finding employer responsible for the cost of medical treatment 

provided to Susan Manola ("claimant") from November 2000 through 

July 16, 2001, and ordering employer to provide claimant with a 

new panel of physicians. Employer appeals the decision on the 

following grounds: 1) the treatment claimant received between 

November 2000 and July 2001 was not reasonable and necessary, 2) 

claimant did not have a valid referral for her treatment between 
November 2000 and July 2001, and 3) a new panel of physicians 

was not required because claimant already had an authorized 

treating physician. Claimant cross-appeals on the ground that 

the trial court should have required employer to prove 

claimant's treatment by one doctor, Dr. Levin, was inappropriate 

in order to justify terminating his treatment. 

Background

 On appeal from a decision of the commission, we review the 

evidence in the light most favorable to claimant, the party 

prevailing below. Lynchburg Foundry Co. v. Goad, 15 Va. App. 

710, 712, 427 S.E.2d 215, 217 (1993). We will uphold the 

commission's decision so long as there is credible evidence to 

support it. Id. "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). 

 Claimant is a music teacher. On February 2, 2000, she 

sustained a compensable injury by accident when she slipped on 

ice at work and fell on her outstretched arm. Claimant 

complained of pain in her hand, wrist, arm, neck, shoulder and 

back resulting from the accident. After claimant injured 

herself, employer presented her with a panel of physicians and 

she selected Dr. Edward Alexander, an orthopedic surgeon, as her 

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treating physician.1 On February 14, 2000, claimant saw 

Dr. Alexander for the first time. Dr. Alexander referred 

claimant to Dr. Steven Levin, at her request, for manipulation 

and trigger point injections because he had treated her for 

similar problems since 1975. 

 On November 13, 2000, Dr. Alexander contacted employer's 

claims representative and questioned whether claimant's 

continued treatment with Dr. Levin was warranted. Dr. Alexander 

stated in his letter to the representative: 

[A]t this point, I find it difficult to 

justify further treatments. The [claimant] 

still complains of pain in her neck, but she 

has very little in the way of objective 

findings to substantiate these allegations. 

At this point, I feel that though she has 

not reached maximum medical improvement that 

her treatment with Dr. Levin should be 

sufficient at least as of the first of 

November and I find it difficult to justify 

further treatments. Probably, you should 

communicate with Dr. Levin to find out his 

opinion on this and what his justifications 

are for continuing treatment. 

 Dr. Levin immediately issued a report in favor of 

continuing claimant's treatment, stating she had made 

improvements under his care and that she continued to require 

his medical treatment. When claimant expressed concern about 

Dr. Alexander's intent to curtail her treatments with Dr. Levin, 

Dr. Alexander recommended she visit the Center for Physical 

 

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1

 Under Code § 65.2-603, employer is required to provide 

employee with a panel of at least three physicians from which to 

select a treating physician. 
Medicine and Pain Management ("CPMPM") for a consultation to 

determine the appropriateness of claimant's treatment with 

Dr. Levin. 

 Claimant saw Dr. Alexander on January 4, 2001, and he 

reported she was "depressed . . . tearful . . . and very angry" 

because she had not received treatment from Dr. Levin in several 

weeks. He noted claimant required "some sort of treatment" and 

instructed her to treat with Dr. Levin every two weeks pending 

the completion of an evaluation by Dr. James Johnsen at CPMPM. 

 On January 4, 2001, claimant saw Dr. Johnsen, who performed 

an electrodiagnostic consultation on claimant that was normal. 

He issued a report stating claimant had seen Dr. Levin 46 times 

and was still "quite symptomatic." He recommended a more 

limited approach to treatment, stating "My opinion is that, 

after 46 treatments with manipulation [with Dr. Levin], I do not 

feel that any more treatments will have any effect on the 

patient's underlying condition . . . ." 

 On February 26, 2001, Dr. Alexander contacted employer's 

claims representative and stated he "would tend to agree" with 

Dr. Johnsen. He told the representative that treatment with 

Dr. Levin should be terminated, but failed to provide a 

definitive date when treatment was to cease. 

 Claimant returned to Dr. Alexander on February 26, 2001. 

She told him she was unhappy with Dr. Johnsen, had no confidence 

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in him, and did not want to be treated by him. Dr. Alexander 

reported in his physician's notes from that day: 

I am not doing anything further for her at 

this time and she does not want to be 

treated by Dr. Johnsen, so this essentially 

leaves Dr. Levin who has been treating her 

and is the only one who seems to be having 

any kind of success. I do not really need 

to see her anymore and I would recommend 

that Dr. Levin be considered her treating 

physician barring periodic evaluations to 

determine her progress. She seems to be 

doing better, she is working, so there is 

something to be said for her success. 

 Dr. Levin treated claimant 29 times between January 8, 2001 

and June 14, 2001. His reports indicate claimant improved 

slightly under his care, but upon each return visit, her 

complaints were similar to those in her previous visit. 

 In July 2001, Dr. Alexander found that Dr. Levin's course 

of treatment was not reasonable and necessary, stating "there 

must be an endpoint" and that treatment by Dr. Levin should 

cease after July 16, 2001 because claimant was not "getting any 

better." 

 The deputy commissioner concluded that Dr. Levin's 

treatment was "neither authorized, reasonable, nor necessary" 

after November 1, 2000. The full commission reversed and found 

the employer was responsible for Dr. Levin's treatment after 

November 1, 2000. The commission further found Dr. Levin's 

treatment was not reasonable or necessary after July 16, 2001. 

Finally, the commission ordered employer to offer claimant a new 

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panel of physicians because Dr. Alexander "had ceased his role 

as treating physician." 

Analysis

I. Referral

Employer argues that Dr. Alexander did not refer claimant 

to Dr. Levin, claiming he merely acknowledged that she preferred 

his treatment and acquiesced to her wishes. We disagree and 

find credible evidence supports the commission's finding that 

Dr. Alexander referred claimant to Dr. Levin and that the 

referral continued without revocation until July 16, 2001. 

 The employer's responsibility for medical expenses under 

Code § 65.2-603 depends upon "(1) whether the medical service 

was causally related to the industrial injury; (2) whether such 

other medical attention was necessary; and (3) whether the 

treating physician made a referral of the patient." Volvo White 

Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 

(1985); Code § 65.2-603. A claimant bears the burden of proof 

on these issues by a preponderance of the evidence. McGregor v. 

Crystal Food Corp., 1 Va. App. 507, 508, 339 S.E.2d 917, 918 

(1986). Claimant selected Dr. Alexander as her treating 

physician from the panel provided to her by employer. 

Therefore, Dr. Alexander was vested with the authority to refer 

claimant to specialists and to determine whether medical 

attention was authorized, reasonable, and necessary. See Jensen 

Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525 (1985) 

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(decided under former Code § 65.1-88, predecessor to Code § 

65.2-603) ("[M]edical management of the claimant is to be 

directed by the treating physician . . . ."). 

 Viewing the evidence in the light most favorable to 

claimant, we find credible evidence supports the commission's 

conclusion that claimant had a valid, continuous referral from 

Dr. Alexander to treat with Dr. Levin from November 2000 until 

July 16, 2001. Dr. Alexander first referred claimant to 

Dr. Levin on February 14, 2000, shortly after her accident. In 

November 2000, Dr. Alexander questioned whether treatments with 

Dr. Levin should continue, but he did not establish a specific 

end date. Indeed, on January 4, 2001, Dr. Alexander explicitly 

recommended claimant continue to treat with Dr. Levin, when he 

reported "I would recommend that she re-institute the treatments 

with Dr. Levin approximately every two weeks . . . . " 

Dr. Alexander saw claimant again on February 26, 2001 and, in 

his notes from the visit, wrote: "I am not doing anything for 

her at his time . . . so this essentially leaves Dr. Levin, who 

has been treating her and is the only one who seems to be having 

any kind of success." 

 We further find the evidence in the record supports the 

commission's determination that Dr. Alexander revoked his 

referral to Dr. Levin effective July 16, 2001. At that time, 

Dr. Alexander found the treatment was no longer "reasonable and 

necessary" and stated it should end on July 16, 2001. 

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II. Reasonable and Necessary Medical Attention

The commission awarded claimant benefits for medical 

expenses she incurred from November 2000 through July 16, 2001. 

Employer appeals the ruling on the ground that claimant's 

treatment by Dr. Levin between those dates was not reasonable 

and necessary medical attention within the meaning of Code 

§ 65.2-603. Because the commission made no findings as to the 

necessity or reasonableness of claimant's medical treatment for 

that time period, and we cannot determine from the record that 

it considered these criteria before making its award, the 

commission's award was erroneous.2 

III. New Panel of Physicians

 Employer further contends the commission erred when it 

required employer to provide a new panel of physicians to 

claimant after Dr. Alexander ceased treating her. We disagree. 

 In the case at bar, the evidence establishes that 

Dr. Alexander ceased being claimant's treating physician on 

February 26, 2001. On that date, Dr. Alexander told claimant to 

continue her treatments with Dr. Levin and recommended that 

"Dr. Levin be considered her treating physician . . . ." On 

 

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2

 The deputy commissioner found that claimant's treatment 

between November 2000 and July 16, 2001 was not "authorized, 

reasonable or necessary." Although the full commission stated 

it "affirmed in part and reversed in part" the deputy 

commissioner's opinion, the commission did not make clear 

whether it reversed the deputy commissioner's finding that the 

medical treatment for those dates was unreasonable and 

unnecessary. 
July 16, 2001, however, Dr. Alexander revoked his referral to 

Dr. Levin when he stated Dr. Levin's treatment was not 

reasonable and necessary. Thus, as of July 16, 2001, claimant 

no longer had a treating physician and required a new panel from 

which to select a new physician. See, e.g., H.J. Holz & Son, 

Inc. v. Dumas-Thayer, 37 Va. App. 645, 656, 561 S.E.2d 6, 15-16 

(2002). 

IV. Claimant's Cross Appeal

 Claimant cross-appeals on the ground that the commission 

erred when it failed to require employer to prove Dr. Levin's 

treatment was "inappropriate" in order to terminate his 

compensable treatment of claimant.3 

 Code § 65.2-603 states: "[a]s long as necessary after the 

accident, the employer shall furnish or cause to be furnished, 

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

such other necessary medical attention." "Whether 'such other 

medical attention' be deemed necessary is for the attending 

physician or . . . commission to determine . . . ." Jensen 

Press, 1 Va. App. at 159, 336 S.E.2d at 525 (quoting Code § 

65.1-88, predecessor to Code § 65.2-603). Therefore, when a 

treating physician determines claimant's medical attention is no 

longer "necessary and reasonable," an employer is no longer 

 

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3

 Claimant uses the term "inappropriate" rather than the 

statutory terms "reasonable and "necessary." For the purposes 

of this opinion, we treat the issue as one addressing the 

statutory requirements. 
required to cover claimant's medical expenses. Volvo White 

Truck Corp., 1 Va. App. at 200, 336 S.E.2d at 906. 

 In the case at bar, the commission found that claimant's 

treating physician, Dr. Alexander, determined Dr. Levin's 

treatment would not be "reasonable and necessary" after July 16, 

2001. The employer, thus, was no longer responsible for medical 

expenses claimant incurred for Dr. Levin's treatment. There is 

credible evidence to support the commission's finding. 

Throughout claimant's treatment by Dr. Levin, Drs. Alexander and 

Johnsen repeatedly expressed doubts that the treatment was 

necessary and reasonable. As early as November 2000, 

Dr. Alexander stated he could not justify Dr. Levin's treatment 

after November 2000. As the commission noted, "after an 

additional eight months of almost weekly care by Dr. Levin, 

Dr. Alexander reiterated that his ongoing treatment was 

unreasonable and unnecessary. Dr. Johnsen concurred with 

Dr. Alexander's opinion in January 2001." Thus, the medical 

records and opinions of Drs. Alexander and Johnsen provide 

credible evidence to support the commission's finding that 

claimant's treatment after July 16, 2001 was not reasonable or 

necessary. 

V. Conclusion

 In summary, we find credible evidence supports the 

commission's determination that claimant had a valid referral for 

treatment with Dr. Levin from November 2000 through July 16, 2001 

and that the referral was revoked effective July 16, 2001. 

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Additionally, the evidence supports the commission's finding that 

Dr. Levin's treatment after July 16, 2001 was no longer 

reasonable and necessary and, thus, was not compensable. 

 We reverse the commission's award for benefits from November 

2000 through July 16, 2001 on the ground that it made no findings 

that treatment for that time period was reasonable and necessary. 

We remand to the commission for further consideration of the 

issue. 

 Finally, we affirm the commission's decision to award 

claimant a new panel of physicians. 

 Affirmed, in part, 

 reversed, in part 

and remanded. 

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