Company's Good-Faith Effort Not Enough to Stop Man From Choosing Own Doctor

Thursday, April 6, 2023 | 0

The Virginia Court of Appeals overturned a finding that an employer’s good-faith effort to provide an injured employee with a list of authorized physicians was sufficient to prevent him from choosing his own doctor.

Case: Jalloh v. S.W. Rodgers, No. 0920-22-4, 04/04/2023, published.

Facts: Abu Jalloh worked for S.W. Rodgers. In June 2021, he fell off a ladder and suffered multiple injuries.

Jalloh notified his supervisor of the accident and went home, but he did not return to work thereafter. Rodgers treated his continued absence as a resignation.

Four days after the accident, the company safety officer spoke to Jalloh by phone. The officer said he was trying to get Jalloh to see a doctor. He later attempted to deliver a panel list of employer-approved physicians to Jalloh’s home, but Jalloh was not present.

Jalloh later declined to meet the safety officer to receive the list of physicians. The officer left, taking the list with him.

Jalloh then saw Dr. Mehrdad Malek for treatment, and Malek directed him to stay off work until November 2021.

Jalloh also saw Dr. Paymaun Lotfi, who cleared him to return to medium-duty work in October 2021.

Procedural history: Jalloh filed a workers’ compensation claim and Rodgers stipulated that he had suffered compensable injuries. However, Rodgers contended that Jalloh’s treatment was unauthorized because he went to his own physician.

A deputy commissioner found Rodgers was responsible for Malek's treatment because it failed to provide Jalloh with a panel of physicians despite "ample opportunity" to do so "within a reasonable time after the accident."

Based on Malek's opinion, the deputy found Jalloh was entitled to continuing temporary total disability benefits.

The Workers' Compensation Commission reversed the decision, finding Rodgers had made a good-faith effort to present Jalloh with the physician list. Thus, the commission said Rodgers was not responsible for the unauthorized treatment. The commission then adopted Lotfi's medical opinion to find Jalloh was not entitled to temporary total disability benefits after October 2021.

Analysis: The Virginia Court of Appeals explained that an employer must furnish medical care for a compensable injury suffered by an employee, and it is statutorily required to provide a panel of at least three physicians from which the employee can choose.

“Here, there is no question that the employer did not provide a list of physicians to the claimant,” the court said. The commission just found that the employer had made a "good-faith effort" to provide a panel to Jalloh.

The court ruled that an employer's subjective intent to comply with its statutory obligations is “simply not relevant.” The express and clear wording of Virginia Code Section 65.2-603 “does not permit an employer to make only a good-faith effort to provide a panel of physicians to the employee,” the court said.

While the record contains no evidence that Rodgers intended to circumvent its obligation, the court said the fact that the safety officer felt his efforts were obstructed by Jalloh did not relieve the company of its duty.

“There were legitimate, straightforward ways in which the employer could have complied with the requirement to provide a panel list, despite the claimant's behavior,” the court said, and "[w]e will not judicially create a good-faith exception” the legislature has declined to provide.

The court said that on remand, the commission must revisit its factual finding as to the duration of Jalloh’s disablement, given that Malek was an authorized treating physician.

Disposition: Reversed and remanded.

To read the court’s decision, click here.