COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

VIRGINIA ELECTRIC & POWER COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1927-96-2 JUDGE JAMES W. BENTON, JR. 

 MARCH 11, 1997 

OLA J. THORPE BOBBITT 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Kathryn Spruill Lingle (Midkiff & Hiner, 

P.C., on brief), for appellant. 

 P. George Eliades II (Eliades & Butterworth, 

on brief), for appellee. 

 Virginia Electric & Power Company contends that the 

commission erred in ruling that the Company was required to pay 

for medical treatment that Ola J. Thorpe Bobbitt received from 

Dr. Mark E. deBlois. We disagree and affirm the commission's 

decision. 

 I. 

 The commission's decision that the Company was responsible 

for the treatment Bobbitt received from Dr. deBlois was based 

upon the commission's consideration of the testimony and other 

evidence in the record. We review the commission's decisions 

under well established principles. We must uphold the 

commission's factual findings when those findings are supported 

by credible evidence. See Code § 65.2-706; James v. Capitol 

 

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

designated for publication. 
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Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 

(1989). Consistent with that principle are the following 

additional principles of appellate review: 

 We do not retry the facts before the 

Commission nor do we review the weight, 

preponderance of the evidence, or the 

credibility of witnesses. If there is 

evidence or reasonable inference that can be 

drawn from the evidence to support the 

Commission's findings, they will not be 

disturbed by this Court on appeal, even 

though there is evidence in the record to 

support contrary findings of fact. 

Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 

507, 510-11 (1983). 

 II. 

 To implement these principles on appeal, we view the 

evidence in the light most favorable to Bobbitt, who prevailed 

before the commission. See R.G. Moore Bldg. Corp. v. Mullins, 10 

Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So viewed, the 

evidence proved that in 1991 Bobbitt sustained compensable back 

and shoulder injuries while employed by the Company. Initially, 

Bobbitt was treated by Dr. Thomas Butterworth. Dr. Butterworth 

operated on her left shoulder. During the course of his 

treatment for her back injury, Dr. Butterworth referred Bobbitt 

to Dr. Kenneth I. Kiluk for a neurosurgical consultation. Dr. 

Kiluk ordered a myelogram, which "did not demonstrate any 

evidence of [a] disc problem." However, a CAT Scan indicated 

"central disc herniation L5-S1." Dr. Kiluk gave her injections, 

but noted that he saw nothing to do "from a neurosurgical point 
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of view." 

 Dr. Butterworth provided epidural blocks and other treatment 

for Bobbitt's disc problems at L5-S1. He also ordered MRIs in 

1993 which showed Bobbitt had significant disc herniation. 

During these treatments, Bobbitt developed psychiatric problems 

and was referred to a psychiatrist. She was hospitalized in 1993 

for major depression that was related to her ongoing chronic 

pain. During her hospitalization, she was sent to see Dr. Harold 

Young, another neurosurgeon. Dr. Butterworth noted that Dr. 

Young "is talking about surgery." 

 In May of 1993, Dr. Butterworth discussed with Bobbitt the 

surgical option of removal of a disc and fusion. His reports 

indicate that she was still in depression and very hesitant about 

surgery. Bobbitt's psychiatric therapist noted that Bobbitt "had 

it out [with] Dr. Butterworth, who has now advised surgery." In 

September of 1993, Dr. Butterworth stated that he had "nothing to 

offer [Bobbitt] except epidural and surgery." 

 Bobbitt continued to experience severe pain and became 

distrustful of Dr. Butterworth. With the concurrence of 

Bobbitt's therapist, Bobbitt's psychiatrist referred Bobbitt to 

Dr. Harold Young, the neurosurgeon who had treated her while she 

was hospitalized. After that referral, Bobbitt's psychiatrist 

retired from practice. Another psychiatrist, Dr. S. K. Niazi, 

became her treating physician. Dr. Niazi continued to treat 

Bobbitt for major depression, changed her medication, and 
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monitored her progress with Dr. Young. 

 Following his examination of Bobbitt, Dr. Young, who earlier 

was "talking about surgery," noted that she "has no focal 

neurological deficit but does have limitation of straight leg 

raising bilaterally and . . . she is not a good candidate for 

lumbar diskectomy for the degenerated disk." Dr. Niazi's notes 

indicate, however, that Bobbitt continued to experience pain and 

that she now was willing to reconsider surgery. Bobbitt told Dr. 

Niazi that she wanted another opinion concerning surgery and 

asked him for the name of an orthopaedic surgeon. Dr. Niazi's 

notes state that Dr. Young, the neurosurgeon, "cannot operate on 

her back." 

 In September 1994, Dr. Niazi wrote to Dr. deBlois, who is 

associated with the same clinic as Dr. Butterworth. He stated 

the following: 

 The above named is my patient and has asked 

to be referred to you for a second opinion of 

her back problems. She has already scheduled 

an appointment with you. Also, she has asked 

that after you see her you then refer her 

back to her other physician for follow up 

care. 

Dr. deBlois examined Bobbitt, noted that her last MRI was done in 

May 1993, and showed a large disc herniation. After Dr. deBlois 

ordered a repeat MRI, he recommended surgery. 

 Bobbitt returned to Dr. Niazi after her evaluation by Dr. 

deBlois. Dr. Niazi made the following notation of that visit: 

 Reports that she has been doing somewhat 

better emotionally. She has gone to another 

[d]octor who is going to operate on her in 2 
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weeks. She is going to have surgery on her 

back and there is some fear about that but 

patient is able to accept it and mostly 

talked about those feelings in this session. 

 We provided support therapy. We will see 

the patient after surgery. Continue current 

treatment plan. 

 Dr. deBlois performed the surgery two weeks after Bobbitt's 

visit to Dr. Niazi. Dr. Niazi saw her after the surgery and 

noted that he was "continuing the current treatment plan, 

medications. She was seen for supportive therapy and will [be] 

reevaluate[d] in four weeks." 

 III. 

 Code § 65.2-603 requires an injured employee to accept 

reasonable and necessary care occasioned by an occupational 

injury. "Whether the employer is responsible for medical 

expenses . . . depends upon: (1) whether the medical service was 

causally related to the [compensable] injury; (2) whether such 

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

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

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

(1985). "Medical evidence . . . is subject to the commission's 

consideration and weighing." Hungerford Mechanical Corp. v. 

Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). 

 The Company does not dispute the causal relation between the 

injury and the surgery or the need for medical treatment. 

Moreover, the commission found, and credible evidence proved, 

that Dr. Niazi was Bobbitt's treating physician. The Company 
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also does not contest that finding. The Company contends that 

the evidence does not support the commission's conclusion that 

Bobbitt received a referral from Dr. Niazi to Dr. deBlois. That 

argument is meritless. 

 On the evidence in the record, the commission found as 

follows: 

 The Deputy Commissioner found that the 

treatment by Dr. deBlois is authorized 

because of a referral by the treating 

psychiatrist. The employer argues that Dr. 

Niazi referred the claimant to Dr. deBlois 

only for a second opinion, not for treatment. 

 However, the record does not support this. 

Initially, Dr. Niazi wrote that the claimant 

only wished to have a second opinion by Dr. 

deBlois, and wanted then to return to her 

neurosurgeon for follow-up care. However, it 

is clear that the claimant reconsidered and 

acquiesced in Dr. deBlois' recommendation of 

surgery, which was opposed by Dr. Young but 

supported by her previous orthopedist, Dr. 

Butterworth. Dr. Niazi's records indicate 

that he was aware of and consented to the 

claimant's decision to pursue orthopedic care 

and surgery with Dr. deBlois. Therefore, the 

continued treatment and surgery by Dr. 

deBlois was with the knowledge and consent of 

an authorized treating physician, Dr. Niazi. 

 The commission's decision is based on abundant credible 

evidence. Dr. Niazi's letter to Dr. deBlois is indisputedly a 

letter of referral of Bobbitt to Dr. deBlois. Furthermore, the 

evidence clearly proved that Dr. Niazi learned at least two weeks 

prior to the planned surgery that Dr. deBlois would perform the 

surgery and that Bobbitt accepted the need for the surgery. Dr. 

Niazi reported that he was providing support therapy and would 

continue with that therapy after surgery. The direct evidence 
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thus proves that Dr. Niazi, Bobbitt's treating physician, made 

the referral, was aware of the planned surgery, acquiesced in the 

surgery, and planned to provide psychiatric support for Bobbitt 

as she prepared for surgery. Both direct credible evidence and 

inferences that flow from the evidence prove Dr. Niazi never 

objected to surgery, encouraged Bobbitt to accept it, and 

continued to provide support to her. Thus, the evidence proved 

he consented to the surgery. Moreover, the record clearly 

established that the surgery was reasonable medical treatment. 

Indeed, it had been previously recommended by Dr. Butterworth. 

 Accordingly, we affirm the award. 

 Affirmed. 
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Cole, J., dissenting. 

 I respectfully dissent because I agree with Chairman Tarr's 

dissenting opinion finding that the medical treatment rendered by 

Dr. Mark E. deBlois was unauthorized. 

 Decisions of the commission as to questions of fact are 

conclusive and binding upon this Court if supported by credible 

evidence. However, when the facts are undisputed, as in this 

case, the sufficiency of the evidence then becomes one of law. 

Breckenridge v. Marval Poultry Co., 228 Va. 191, 196, 319 S.E.2d 

769, 772 (1984); Wells v. Commonwealth Dept. of Transp., 15 Va. 

App. 561, 563, 425 S.E.2d 536, 537 (1993). 

 The claimant (Bobbitt) sustained an injury to her back on 

May 31, 1991, when she lifted a container while performing her 

work duty as a stock helper. She came under the care of Dr. 

Thomas R. Butterworth, Jr., an orthopedic surgeon, for treatment. 

 After two years of conservative treatment, a note in the 

medical records summarized Bobbitt's condition: 

 Ms. Ola Bobbitt had an MRI at Chippenham 

Medical Center on May 13, 1993. This showed 

a large, central herniated disc at the L5-S1 

level. She has continuous back and left leg 

pain. She is unable to bend or lift and is 

limited in walking, standing or 

sitting. . . . 

 Her only option for treatment at this time is 

surgery. However, she is also suffering from 

severe depression at this time and is unable 

to make a decision regarding surgery. 

 Her physical condition and severe depression 

make her unable to perform any type of work 

at this stage. Her prognosis is not 

optimistic at this time. 
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 Bobbitt had some severe psychiatric problems caused in part 

by the accident, but also related to severe family problems. In 

a report to the employer on July 14, 1993, her psychiatrist, Dr. 

A. M. Masri, stated: 

 Mrs. Bobbitt has remained under my care, has 

been seen on a weekly basis for supportive 

therapy. She has also continued to require 

medication for her severe disturbances of 

mood. On several occasions, she has 

displayed frankly manic affect, with 

pressured speech, flight of ideas, and 

inappropriate affective quality. Also, she 

has presented on several occasions severely 

depressed, reporting overt suicidal impulses, 

feelings of hopelessness. We were able with 

a great deal of support to keep her out of 

the hospital, but this is always a 

possibility. 

 Therefore, in the spring of 1993 Dr. Butterworth was 

Bobbitt's treating physician for orthopedic problems and Dr. 

Masri was the treating physician for psychiatric problems. 

 In a letter dated September 27, 1993, to the employer, Dr. 

Masri advised that he had referred Bobbitt to Dr. Harold Young, 

Chairman of Neurosurgery, Medical College of Virginia ("MCV"). 

Dr. Masri stated that he was in no way criticizing the care given 

by Dr. Butterworth, but that Bobbitt had developed strong 

negative feelings toward his treatment and focused her feelings 

upon Dr. Butterworth. Dr. Masri opined that this was not an 

unusual situation but did affect the prognosis and treatment 

outcome. 

 In a letter to the employer dated October 11, 1993, Dr. 
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Butterworth reported that Bobbitt thought of him as a "company 

doctor" and refused to have the prescribed epidurals. Dr. 

Butterworth stated that Bobbitt's psychiatrist wanted to send her 

to Dr. Young at MCV for his opinion. Dr. Butterworth stated that 

Dr. Young is a respected neurosurgeon and suggested that the last 

MRI be sent to him. Therefore, in October of 1993, the treating 

orthopedic physician was changed to Dr. Young with the approval 

of Dr. Butterworth, Dr. Masri, and the employer. 

 Shortly thereafter Dr. Masri retired from his psychiatric 

practice and Dr. S. K. Niazi became Bobbitt's psychiatric 

treating physician. Dr. Niazi first saw Bobbitt for evaluation 

on April 19, 1994. Dr. Niazi noted Bobbitt's severe family 

problems, depression and the multiple physical problems due to 

pain in her back, herniated discs, and shoulder pain. 

 Drs. Young and Niazi continued as treating physicians. In 

an office note dated June 20, 1994, Dr. Niazi recorded that 

Bobbitt is very upset; she is in physical pain; she feels like 

her neurosurgeon is not paying enough attention to her problem; 

and he cannot operate upon her back and she wants another 

opinion. Bobbitt asked Dr. Niazi for the names of some 

orthopedic surgeons. The record does not reflect that Dr. Niazi 

gave Bobbitt any names. 

 Bobbitt continued to have regular visits with Dr. Niazi. 

His office notes on August 8, 1994, indicate Bobbitt is depressed 

and has pain. Bobbitt stated she wanted to switch over to 
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another neurosurgeon because she felt she was not getting enough 

attention at MCV. Dr. Niazi's office notes on August 31, 1994, 

also indicate that Bobbitt is not very happy with her current 

neurosurgeon and wants to make a change. At Bobbitt's September 

12, 1994 visit, Dr. Niazi did not record any complaint against 

Dr. Young, and Dr. Niazi reported that Bobbitt was feeling 

better. Dr. Niazi noted that Bobbitt was more stable in mood. 

Dr. Niazi asked Bobbitt to continue her medications and to return 

in one month. 

 Without any explanation in the record, four days later on 

September 16, 1994, Dr. Niazi wrote the following letter to Dr. 

Mark deBlois, an orthopedic surgeon, concerning Bobbitt: 

 The above named is my patient and has asked 

to be referred to you for a second opinion of 

her back problems. She has already scheduled 

an appointment with you. Also, she has asked 

that after you see her you then refer her 

back to her other physician for follow up 

care. 

 At the October 10, 1994 session, Dr. Niazi's office notes 

indicate that "[Bobbitt] is going to have surgery on her back and 

there is some fear about that but patient is able to accept it 

and mostly talked about those feelings in this session." 

 The record reflects that Bobbitt was admitted to Chippenham 

Medical Center on October 19, 1994, for the taking of her history 

and medical examination. On October 24, 1994, Dr. deBlois 

operated on Bobbitt for lower back and left leg pain. 

 On November 7, 1994, Bobbitt again visited Dr. Niazi. 
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According to his office notes, Bobbitt was very depressed, 

anxious, and crying at this visit. She reported she had back 

surgery two weeks ago. She reported that she was not feeling any 

better and actually had more pain than before the surgery. She 

wanted Dr. Niazi to prescribe antibiotics for her because her 

husband thought she should have them after back surgery. 

 To support its argument that Dr. deBlois became an 

authorized physician, the commission reasoned: 

 1. The claimant reconsidered and acquiesced in 

Dr. deBlois's recommendation for surgery. 

 2. Dr. Niazi's records indicate that Dr. Niazi 

was aware of and consented to the claimant's 

decision to pursue surgery with Dr. deBlois. 

 3. Therefore, the continued treatment and 

surgery by Dr. deBlois was with the knowledge 

and consent of the authorized physician. 

 The record establishes that Dr. Niazi was aware of and had 

knowledge that Dr. deBlois was going to perform surgery upon 

Bobbitt's back. On September 16, 1994, Dr. Niazi had requested a 

second opinion from Dr. deBlois. On October 10, 1994, according 

to Niazi's office notes, Bobbitt advised him that she had gone to 

another doctor and that she was to be operated upon in two weeks. 

 However, there is nothing in the record to prove that Dr. Niazi 

consented to the surgery. Moreover, whether he consented is 

totally irrelevant to the issue in this case whether Dr. deBlois 

became an authorized physician. 

 In order to hold an employer liable for medical expenses, 

the claimant must prove that the service was causally related to 
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the industrial accident; that it was necessary; and that the 

treating physician made a referral to the patient. Shenandoah 

Prods., Inc. v. Whitlock, 15 Va. App. 207, 211, 421 S.E.2d 483, 

485 (1992). Without a referral from an authorized treating 

physician, the treatment by an unauthorized physician is not the 

responsibility of the employer. Id. at 212, 421 S.E.2d at 485. 

There are several exceptions to this rule not present in this 

case. See Code § 65.2-603(C). 

 When a claimant changes physicians without prior 

authorization of employer, insurance carrier, or commission, he 

must pay for the medical treatment rendered by the second 

physician. Mitchell v. Anchor Warehouses Inc., 49 O.I.C. 223, 

226 (1967); Martin v. Miller & Rhoads, Inc., 34 O.I.C. 19, 20-21 

(1952). 

 Whether Dr. Niazi was aware of, had knowledge of, or 

consented to Dr. deBlois's surgery are irrelevant. The issue is 

whether Dr. Niazi referred Bobbitt to Dr. deBlois for treatment. 

 The effect of such a referral, had one been made, would have 

been to divest Dr. Young as the treating physician in the area of 

orthopedics and would have produced an intolerable situation 

concerning who was responsible for providing necessary orthopedic 

services to the claimant. To Dr. Niazi's good credit, he did not 

do this. He requested a second opinion which did not change the 

status of anyone. He could use the information obtained from 

that opinion to determine if bad orthopedic practices were the 
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cause of any of the psychiatric problems of his patient. If so, 

he could pass that on to the employer, carrier, or commission for 

appropriate action. 

 A simple case will illustrate the fallacy of the 

commission's ruling. If Bobbitt had walked into Dr. Niazi's 

office, as she did here, and told him that she had employed Dr. 

deBlois to operate on her back, what should Dr. Niazi's response 

have been? He could have advised her to immediately get 

permission for the operation from the employer, the insurance 

carrier, or the commission. But, he is not responsible for 

giving legal advice and may not have felt competent to do so. He 

could have said I approve of that and agree that is the proper 

thing to do. This still would not have been a referral, and Dr. 

Young would remain the treating physician. Bobbitt had every 

right to employ Dr. deBlois to perform the operation. Dr. Niazi 

had no right to interfere with Bobbitt's choice of a physician. 

The only difference is that if she chooses an unauthorized 

physician, she, not the employer, is responsible for paying for 

the services rendered. 

 When you dissect the majority opinion, it says that Dr. 

Niazi consented to the surgery because (1) he never objected to 

it; (2) he encouraged Bobbitt to accept surgery; and (3) he 

continued to provide psychiatric support to her for the reasons 

previously stated. All of these things are irrelevant. Bobbitt 

had a right to change physicians at anytime, subject only to the 
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fact that she would have to pay for the services of an 

unauthorized physician if she chose one. The fact that Dr. Niazi 

did not object, encouraged Bobbitt to accept it, and continued to 

provide psychiatric support do not amount to a referral. There 

is a big difference in the meaning of consent and a referral. 

Again, I would point out that there is absolutely no evidence in 

the record that Dr. Niazi consented to Bobbitt changing to Dr. 

deBlois and having the surgery. For the reasons stated, I would 

reverse the decision of the commission.