In Virginia, the circumstances that justify a change in treating physician are as follows:
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.
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.
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 workers' compensation practice group.