Shawnee Management Corp. v. Hamilton

MOON, Chief Judge. Shawnee Management Corporation appeals the decision of the commission awarding Rhonda C. Hamilton benefits. The dispositive question is whether Shawnee must continue paying disability benefits to Hamilton who did not stop smoking cigarettes and/or lose weight as required by her treating physician in order to undergo surgery. We find that because Hamilton’s failure to quit smoking renders her unable to receive medical treatment for her compensable injury, her refusal to stop smoking constitutes refusal of medical treat [153] ment, and therefore precludes her right to compensation until she complies. On October 25, 1991, Hamilton, a resident of Winchester, Virginia, slipped on a wet floor at her place of employment and injured her back. By agreement, an award was entered for temporary total disability benefits beginning November 2, 1991. On January 25, 1993, Hamilton underwent back surgery to correct her injuries. About early April she moved from Winchester, Virginia, to Manassas, Virginia, but continued to travel back and forth to Winchester for treatment by Dr. Zoller. On July 20, 1993, Dr. Zoller released her to return to light work with several restrictions. In August, 1993, Shawnee sent a job description to Dr. Zoller, describing a cashier position at a Winchester Hardees. Shawnee intended to offer Hamilton the position pending Dr. Zoller’s approval of the job. Dr. Zoller noted in Hamilton’s medical records that: I got a job description from Shawnee Corporation and I read it to [Hamilton] and I said that there was no way I could legitimately say no to this offer. They are bending over backwards to accommodate her and it certainly seems like it would be doable by anybody other than possibly a quadriplegic. Hamilton testified that in late August Shawnee offered her the cashier position. She testified that she declined to take the position because her back still hurt and the hour and one-half commute each direction was excessive given that she would only work two or three hours each day. She testified, “I told [Dr. Zoller], you know, since I was so far away that I was going to try to babysit my daughter’s kids. I didn’t really look at as [sic] refusing, I just — it would have been too far to have drove [sic].” Hamilton also testified that she had looked for work within her capabilities. She testified: “I’ve applied for jobs. But, ... they don’t really want someone that they have to limit. So, I didn’t — I wasn’t accepted.” She also testified that during the two year period in which she could have returned to work, she did not register with the Virginia [154] Employment Commission and applied for work -with only three stores. On September 14, 1993, Shawnee filed an application to suspend Hamilton’s benefits on the basis that she had refused selective employment within her residual capacity. Hamilton’s benefits were suspended as of September 13, 1993, not on the basis of Shawnee’s application, but because Hamilton had failed to keep the commission informed of her mailing address. In December, 1993, Hamilton moved back to Winchester, Virginia. In August, 1994, Dr. Zoller referred Hamilton to Dr. John P. Kostuik at Johns Hopkins for a second opinion. Dr. Kostuik determined that additional surgery was needed. Both doctors agreed that the procedure should not be undertaken until Hamilton stopped smoking and lost some weight. On or about August 25, 1994, Dr. Zoller wrote to Shawnee’s insurance carrier and reiterated that Hamilton could return to work and that she was once again living in Winchester. Dr. Zoller noted that the restrictions for work remained “totally unchanged” from July, 1993. Hamilton testified that she had previously quit smoking in order to undergo the original back surgery in January, 1993. She stated that she refrained from smoking for sixteen to eighteen months, but explained that “my son got in trouble and my sister kept on, here take a drag and calm your nerves, calm your nerves. So I started up again.” Hamilton testified that she smoked two packs of cigarettes a day at the time Drs. Zoller and Kostuik instructed her to stop in order to undergo the additional surgery. Since that time, Hamilton testified, she has reduced her smoking to five or so cigarettes a day. She has also gained approximately sixty pounds. On January 3, 1995, Dr. Zoller wrote to Shawnee’s insurer explaining that he had changed his mind regarding Hamilton’s ability to return to work, stating that “it probably would have been more worthwhile to keep her on with off-work from that time [July 20, 1993] until the present time.... I feel that [Hamilton] should be considered off work the entire period of [155] time, never having been allowed to go back to work.” Dr. Zoller noted on February 22, 1995 that Hamilton had not stopped smoking and that they could not proceed with surgery until she stopped. On January 31, 1995, Hamilton filed a change in condition application seeking temporary total disability benefits beginning September 14, 1993. The deputy commissioner considered Hamilton’s application and Shawnee’s application still pending from September 14, 1993. The deputy commissioner found Hamilton’s failure to stop smoking warranted continued suspension of her benefits until such time as she stopped in order to undergo the corrective surgery. The deputy commissioner specifically declined to reach the other defenses raised by Shawnee or Shawnee’s application, although evidence was presented by the parties on these issues. On Hamilton’s appeal, the full commission reversed the deputy commissioner’s ruling and summarily disposed of every defense raised by Shawnee and Shawnee’s application. Smoking as Refusal of Medical Care Workers’ compensation benefits may be suspended where a claimant refuses medical treatment. Davis v. Brown & Williamson Tobacco Co., 3 Va.App. 123, 127, 348 S.E.2d 420, 422 (1986). Here, Hamilton’s continued smoking completely prohibits her from receiving treatment. Hamilton was informed unequivocally that before she could have surgery she must “quit [smoking] altogether.” Her doctor explained to her that the surgery she required could not be performed while she continued to smoke and to suffer the effects of routine cigarette use. Until she quits smoking, she will remain totally disabled because of her injury and consequently unable to work. Hamilton’s continued smoking constitutes a complete and total bar to her treatment and therefore bars her ability to reenter the work force. Hamilton is faced with the choice of having to quit smoking entirely or to continue her current condition without treat [156] ment. No evidence in the record proved that Hamilton is so addicted to tobacco that she cannot stop smoking. To the contrary, Hamilton testified that she had, on her doctor’s order, previously stopped smoking for a period of sixteen to eighteen months. Further, Hamilton testified that she had reduced her smoking from two packs a day to five cigarettes a day. This record does not support a finding that Hamilton should be entitled to continue drawing benefits while she chooses to forgo the medical treatment determined by her doctor. Hamilton’s decision to keep smoking, knowing it prevents her from having surgery, is no more or less than a decision not to undergo the medical treatment prescribed by her treating physician. Therefore, her benefits should be suspended. Holding that Hamilton’s claim for compensation was properly denied, we need not reach the additional issue raised by Shawnee concerning whether Hamilton may refuse selective employment because she has moved away from her original job location. Reversed.