In Virginia, the circumstances that justify a change in treating physician are as follows:
- Inadequate treatment is being rendered;
- Specialized treatment is needed and is not being provided;
- A lack of progress or improvement of the claimant's condition without any adequate explanation is shown;
- Conventional modalities are not being used;
- No plan of treatment for a long-term disability is established; and
- The treating physician fails to cooperate with discovery proceedings ordered by the Commission.
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 675, 508 S.E.2d 335, 341 (1998). It is also worth noting that the party seeking the change in treating physician bears the burden of establishing that a change is warranted. Apple Constr. Corp. v. Sexton, 44 Va. App. 458, 461, 605 S.E.2d 351, 352 (2004).
A successful change in treating physician application brought by the employer and carrier is illustrated in the case of Hite v. Dupont Cmty. Credit Union, JCN 2251240, 2016 VA Wrk. Comp. LEXIS 49 (Jan. 27, 2016). In this case, the claimant had been treating with her treating physician for almost ten years. The defendants filed an application seeking a change in treating physician on the ground that the claimant had not significantly improved or benefited from the services rendered by the treating physician. In fact, the claimant testified that the procedures administered by her treating physician only alleviated her pain complaints for three or four days. The Full Commission found that a change in treating physician was warranted, as there was no progress in the claimant’s treatment. It was also found that the claimant could benefit from medical specialties that the treating physician was unable to provide.
As noted above, claimants can also request a change in treating physician. A claimant cannot request a change simply because he or she does not get along with the physician or disagrees with their opinion. Instead, the same six factors discussed in Briggs are used by the Commission to evaluate whether a change in treating is warranted when the request is made by a claimant. For example, in the Court of Appeals opinion, Miller Oil Co. v. Freeman, 2016 Va. App. LEXIS 215 (Aug. 2, 2016), the claimant requested a change in treating physician, as her treating physician opined that her condition had resolved and she had reached maximum medical improvement. However, the claimant allegedly continued to experience pain. The claimant then began treating with another physician because of her continued pain. The Court ruled that the claimant’s testimony that she had consistently experienced pain was credible. Ultimately, the Court held that the claimant established that there was lack of improvement in her condition and was entitled to further treatment with a different treating physician.
Several actions can be taken to increase the chances of prevailing on a change in treating physician application and in defending a request by the claimant. First, it will be necessary to depose the treating physician. The deposition will help in establishing the above-referenced factors. If you anticipate that the deposition will be contentious, consider having the deposition videotaped. The video of the deposition can be entered into evidence if the matter proceeds to hearing. Second, an independent medical examination, medical records review, or both, should be scheduled to help support the application. Specifically, the independent medical examination and/or medical records review will provide reasoning behind why the change is necessary and may help to outline an alternative treatment plan. To aid the independent medical examiner, make sure to outline why exactly you are seeking the change and which of the above-referenced factors you are using to support your theory of the case.
The claimant’s treating physician is an extremely important component of any case, as they help to mitigate costs and promote return to work. If it appears that inappropriate care is being rendered, examine the factors referenced above and determine the strength of a potential change in treating physician application. For assistance in evaluating a treating physician or in filing an application, please contact any of the attorneys in our practice group.