Jalloh v. S.W. Rodgers, Record No. 0920-22-4 (Va. Ct. App. April 4, 2023)

Facts. On June 10, 2021, Abu Jalloh fell off a ladder and injured his back, neck, and shoulders. A few days later, Jalloh’s safety officer called Jalloh to convince him to get medical attention, but Jalloh said he would find his own doctor. The officer went to Jalloh’s home to give him a panel list of employer-approved physicians, but only Jalloh’s wife was home. Jalloh’s wife called Jalloh, and the officer spoke to him on the phone. Jalloh told the officer to leave his house. The officer did so without leaving the list of employer-approved physicians. No one from the company ever mailed or emailed Jalloh a copy of the list.

Jalloh saw his orthopaedic surgeon, Dr. Mehrdad Malek, who diagnosed him with various sprains and strains, prescribed him medication and physical therapy, and told him not to work until November 30, 2021. At his employer’s request, Jalloh also saw Dr. Paymaun Lotfi. Dr. Lotfi also diagnosed Jalloh with various sprains, but told him he could return to medium-duty work on October 28, 2021.

Jalloh later sought benefits under the Workers’ Compensation Act. While his employer agreed that he had suffered compensable injuries, it argued that Jalloh’s treatment was not authorized because he did not go to an approved doctor, and that Jalloh was not as injured as he alleged. The deputy commissioner disagreed with the employer on both points, but the Commission reversed. It found that the employer had made a good faith effort to present Jalloh with an approved panel of physicians, which was sufficient to fulfill its obligation to provide an approved panel under Code § 65.2‑603. Since it had found that Dr. Malek was not an approved doctor, it also adopted Lotfi’s opinion that Jalloh could return to work in October.

Issue. Whether a good faith effort is sufficient to fulfill an employer’s obligation under Code § 65.2‑603 to provide a panel of physicians to an injured employee.

Holding. No. An employer’s subjective intent to comply with the statute is not relevant.

Notes. Code § 65.2‑603 requires an employer to provide an injured employee with a panel of at least three physicians from whom the employee can seek compensable treatment. If the employer does not, the employee can choose his own doctor. The statute requires the employer to meet an objective standard of providing this list, and conspicuously omits a good faith exception to that standard. Thus, the Commission’s factual finding that the employer only “attempted” to give the list to the employee was not enough and Jalloh was allowed to choose his own doctor.

Importantly, this holding also affected the Court’s review of the Commission’s decision to accept Dr. Lotfi’s prognosis that Jalloh could return to medium-duty work. While appellate courts are bound by the Commission’s factual findings if supported by credible evidence, the Commission must also afford the treating physician’s opinion great weight. In this case, the Commission disregarded Dr. Malek’s opinion because he was not an approved doctor. The Court of Appeals therefore remanded the case to the Commission to weigh Dr. Malek’s and Dr. Lotfi’s competing opinions on Jalloh’s disability.

Read the Opinion.