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Virgina Workers' Compensation Treating Physician Rule is Alive and Well

Posted by attorney Gerald Lutkenhaus

In a recent case, the Full Commission of the Virginia Workers’ Compensation Commission had to decide whether or not to uphold the ‘treating physician" rule. Simply stated, the rule says if all other matters are equal the Commission gives greater weight to the opinion of a treating physician than that of an independent medical examiner.

The case was Walker v. Manorcare Health Services, VA0000018701 (April 18, 2012 Opinion). Walker had filed a claim for benefits for an October 8, 2008 lower back injury. She treated with a physician and a nurse practitioner over a number of months. The nurse practitioner consistently related the treatment to the October 8, 2008 accident. The insurer referred the claimant for an independent medical examination with Dr. Gordon. He opined Walker may have had a back strain on October 8, 2011 but she should have recovered from this and her ongoing treatment and disability was no longer related to the October 8, 2008 accident. Dr. Gordon advised any current back problems were caused by Walker’s pre-existing back condition.

The deputy commissioner who heard the case awarded Walker benefits giving greater weight to the opinion of the nurse practitioner.

The Full Commission (the three Commissioners who hear appeals) agreed with the deputy commissioner and gave greater weight to the opinion of the nurse practitioner. A dissenting Commissioner disagreed arguing that Dr. Gordon’s opinion on causation should have been decisive because it was supported by objective findings of a pre-existing condition in 2006.

The majority opinion did acknowledge the history of the 2006 back problem but noted it did not keep her out of work but the October 8, 2008 accident did keep her out of work. Due to this additional factor, the majority accepted the opinion of the Nurse Practitioner over that of Dr. Gordon, the independent medical examiner.

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You can contact Jerry Lutkenhaus for a free consultation on a Virginia Workers' Compensation claim by phone 804-358-4766.

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