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Shawnee Management Corp. v. Hamilton2/4/1997
Argued at Salem, Virginia
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
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 treatment, 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 baby-sit my daughter's kids. I didn't really look at as refusing, I just--it would have been too far to have drove ." 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 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 "tota
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