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MEDICAL CARE
"All questions arising under [the Workers' Compensation Act ("the Act")]... shall be determined by the Commission . . .." Code Sec. 65.2-700. "This grant of subject matter jurisdiction includes the authority of the commission to enforce its orders and to resolve coverage and payment disputes." Bogle Development Co. v. Buie, 250 Va. 431, 434, 463 S.E.2d 467, 468 (1995). Code Sec. 65.2-714 (A) provides the commission exclusive jurisdiction overall disputes concerning payment of the fees or charges of physicians and hospitals. Moreover, an employer has a statutory duty to provide an employee with free medical care related to a compensable injury. Code Sec. 65.2 -603(A). In Bogle, the Supreme Court ruled that the commission did not have jurisdiction to consider the reimbursement claim of a private health insurance carrier after the employer had reimbursed the employee for his out-of-pocket payment for his medical expenses. Bogle, 250 Va. at 434, 463 S.E.2d at 468-69. The Court ruled that the commission lacked jurisdiction to consider a claim by the employee's insurer against the employer for reimbursement of the insurer's expenses because "no right of the [employee] was 'at stake.'" Id. The commission did not have before it a request for reimbursement by a private health insurance company. Rather, the commission had before it a dispute among a medical care provider, an employee, and an employer concerning whether the employer was responsible for payment of claimant’s medical expenses. Such a dispute falls squarely within the commission's sole jurisdiction provided for under the Act. Code Sec. 65.2-714. Combustion Engineering, Inc. v. Ernest R. Lafon, Jr., Record No. 2327-95-3 (April 9, 1996).
Code Sec. 65.2-603(A)(1) provides in pertinent part as follows: As long as necessary after an accident, the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician . . . and such other necessary medical attention. "'So long as a causal relationship between the industrial accident and the . . . [treatment rendered] is shown, the employer is financially responsible for the medical attention which the attending physician deems necessary, subject to review by the Commission.'" Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 714, 427 S.E.2d 215, 217-18 (1993)(quoting Jensen Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525 (1985)). Moreover, Code Sec. 65.2-603 should be construed liberally in favor of the claimant, in harmony with the Act's humane purpose. See Goad, 15 Va. App. at 713, 427 S.E.2d at 217.
"Medical management of the employee is not to be directed by the employer. An employer can require an employee to select an attending physician from its panel of three, but only an attending physician or the [Workers' Compensation] Commission may require an employee to see another physician." Schwab Constr. v. McCarter, 25 Va. App. 104, 109-10, 486 S.E.2d 562, 565 (1997) (quotations omitted); see also Jensen Press v. Ale, 1 Va. App.153, 158, 336 S.E.2d 522, 525 (1985) ("A long-held principle of the . . . Commission, founded on Code Sec. 65.1-88 [now Code Sec. 65.2-603], is that medical management of the claimant is to be directed by the treating physician, not by an employer's representative.").
The commission may order a change in the treating physician when the physician refuses to timely provide copies of the employee's medical reports to the employer upon request. See Wiggins v. Fairfax Park Ltd. Partnership, 22 Va. App. 432, 442, 470 S.E.2d 591, 596-97 (1996). The commission has previously set forth several grounds upon which it will order a change in an employee's treating physician: inadequate treatment is being rendered; it appears that treatment is needed by a specialist in a particular field and is not being provided; no progress being made in improvement of the employee's health condition without any adequate explanation; conventional modalities of treatment are not being used; no plan of treatment for long-term disability cases; and failure to cooperate with discovery proceedings ordered by the Commission. Powers v. J. B. Constr. Co., 68 O.I.C. 208, 211 (1989)(construing Code Sec. 65.1-88 (now Code Sec. 65.2-603)).Additionally, when an employer seeks to change claimant's treating physician because the claimant has made little progress and no treatment plan has been derived, the employer must identify the alternative care that should be substituted and must demonstrate that the suggested care would be more appropriate and productive. See Bennett v. Fairfax County Sch. Bd., 74 O.W.C. 1, 4 (1995). Allen & Rocks, Inc. v. Perry Lee Briggs, Record No. 0768-98-3 (December 22, 1998).
There was no basis to order a change in treating physicians for a claimant with a deteriorating spine condition, where one of claimant's doctors did not endorse the suggestion of a functional capacity evaluation but did not immediately address a question about such an evaluation. Another doctor did not recommend a functional capacity evaluation, but rather, only raised it as a possibility. Claimant's doctor has given sound reasons for his belief that the claimant should not physically have to undergo it. Moreover, claimant's doctor's failure to immediately respond to the insurer's inquiry about the functional capacity evaluation does not constitute a basis to order a change in treating physicians, when the record otherwise reveals that he has promptly forwarded his reports following evaluations, and he already completed a functional capacity evaluation. Further, there were other avenues to obtain this information either through interrogatories or a deposition. Pepsi-Cola Bottlers of Washington, D.C., Inc. v. Joseph W. Kane, Record No. 2299-98-4 (February 16, 1999).
The commission did not err in denying a request for change in treating physicians. The claimant maintained that her doctor refused to treat her, but the evidence did not disclose that the doctor refused to treat the claimant. The record gives no indication that at any time the doctor voiced reluctance to attend to the claimant. the doctor's refusal to schedule one appointment with the claimant resulted from his professional opinion that a consultation by telephone was adequate to treat her complaint. "Whether a treating physician has released or abandoned his patient most often is determined by the express intent of the physician. . . . [I]t is a factual determination which must be proven by clear and convincing evidence in light of the high professional responsibility which a medical doctor owes to provide patient care and treatment." Jensen Press v. Ale, 1 Va. App. 153, 157, 336 S.E.2d 522, 524 (1985) (emphasis added). Indeed, in Jensen, the Court observed that "[o]ne refusal to see [a] claimant on request was not a release or discharge." Id. Claimant failed to demonstrate that her doctor expressed a clear intent to terminate his treatment of her. After her doctor did not schedule an appointment, claimant chose not to treat with this doctor, but treated with another doctor of her choosing. Claimant herself terminated her treatment with her doctor. Having done so, she was not entitled to pursue treatment with another doctor. Maria Emigdia Turpin v. Fairfax County School Bd., Record No. 2933-98-4 (November 2, 1999). WP Version.
The Commission properly awarded a change in treating physicians where claimant's current treating physicians have failed to develop an effective long-term treatment plan and have not made adequate progress in treating claimant's complex problems. Code Sec. 65.2 -603 provides that an employer must furnish an injured employee reasonable and necessary medical treatment free of charge. The commission is authorized to order a change in treating physicians. See Code Sec. 65.2 -603. The commission has previously identified the following grounds upon which it will order a change in an employee's treating physician: inadequate treatment is being rendered; it appears that treatment is needed by a specialist in a particular field and is not being provided; no progress being made in improvement of the employee's health condition without any adequate explanation; conventional modalities of treatment are not being used; no plan for treatment for long-term disability cases; and failure to cooperate with discovery proceedings ordered by the Commission. Powers v. J.B. Constr., 68 O.I.C. 208, 211 (1989) (construing Code Sec. 65.1-88 (now Code Sec. 65.2 -603)). Dana Corporation v. Leslie Marie Snyder, Record No. 1969-98-3 (February 23, 1999).
In general, absent a referral from the authorized treating physician, claimant was not entitled to change treating physicians except by permission from the commission or the employer. See Shenandoah Prods., Inc. v. Whitlock, 15 Va. App. 207, 210, 421 S.E.2d 483, 485 (1992).The natural consequences of a compensable injury are compensable. Because the DVT and pulmonary emboli followed as natural consequences of the compensable back injury, the commission did not err in holding employer responsible for medical expenses related to treatment of those problems. See Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 283, 348 S.E.2d 876, 879 (1986).
The "two causes rule." That rule provides that a condition which has two causes, one related to a work injury, and one not, is compensable and the treatment of that condition will be the responsibility of the employer. See Shelton v. Ennis Bus. Forms, Inc., 1 Va. App. 53, 55, 334 S.E.2d 297, 299 (1985).
Whether the employer is responsible for medical expenses depends upon: (1) whether the medical service was causally related to the industrial injury; (2) whether such other medical attention was necessary; and (3) whether the treating physician made a referral. Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).
"Whether the employer is responsible for medical expenses . . . depends upon: (1) whether the medical service was causally related to the industrial injury; (2) whether such other medical attention was necessary; and (3) whether the treating physician made a referral to [sic] the patient." VolvoWhite Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). There is no evidence in the record to establish that the claimant suffered injuries other than to his neck, back, and left upper extremity in his May 15, 1996 accident. All other bills, except those for one doctor’s services, are clearly unrelated to the claimant's May 15, 1996 industrial accident. Robert Raphael Ambrogi, Jr. v. Manpower, Inc., Record No. 1360-99-4 (November 23, 1999). WP Version.
Code Sec. 65.2-603(B) aims to "place the cost of medical care on the employer and to restore the employee's good health" so that he may return to work. Richmond Memorial Hosp. v. Allen, 3 Va. App. 314, 318, 349 S.E.2d 419, 422 (1986) (interpreting former Code Sec. 65.1-88(B)). "It penalizes an employee 'who unjustifiably refuse[s] reasonable and necessary medical treatment.'" Holland v. Virginia Bridge & Structures, 10 Va. App. 660, 663, 394 S.E.2d 867, 868 (1990) (quoting Davis v. Brown & Williamson Tobacco Co., 3 Va. App. 123, 127, 348 S.E.2d 420,421 (1986)). When determining whether a refusal of medical treatment was justified, [courts] look not at whether the recommended procedure was medically justified, but rather whether the patient's refusal to submit to it was justified. See Holland, 10 Va. App. at 662, 394 S.E.2d at 868. "The matter of justification must be considered from the viewpoint of the patient and in the light of the information which was available to him." Id. We do not have before us a case where the employee lacked complete medical consultation and assurance. See, e.g., Holland, 10 Va. App. at 663, 394 S.E.2d at 868.
A chiropractor is not a "physician" for purposes of designation to a panel of physicians pursuant to Code Sec. 65.2-603(A)(1) of the Workers' Compensation Act. To interpret the term "physician" in Code Sec. 65.2-603 to include chiropractors would render the language of Code Sec. 65.2-603(D) superfluous and meaningless. Lois Kay Gray v. Graves Mountain Lodge, Inc., Record No. 0982-97-2 (January 20, 1998).
Where the employer disputed the compensability of the claim, claimant was free to seek medical treatment of her own choosing. See Bassett Burkeville Veneer v. Slaughter, 21 Va. App. 575, 578-79, 466 S.E.2d 127,129 (1996).
In the event of a compensable work related injury, Code Sec. 65.2-603 provides that the employer shall furnish free of charge to the employee a physician of his choice from a panel of at least three physicians and the attendant medical costs. If no panel of physicians is offered to the employee, he or she is free to select his [or her] own physician. Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App. 120, 128, 384 S.E.2d 333, 337-38 (1989) (decided under former Code Sec. 65.1-88). However, once the selection is made, the employee may not seek the treatment of another physician "'unless referred by [the first] physician, confronted with an emergency, or given permission by the employer and/or its insurer or [the] Commission.'" Davis v. Brown & Williamson Tobacco Co., 3 Va. App. 123, 126, 348 S.E.2d 420, 421 (1986) (quoting Breckenridge v. Marval Poultry Co., 228 Va. 191, 194, 319 S.E.2d 769, 770-71(1984)) (decided under former Code Sec. 65.1-88).
Code Sec. 65.2-603(B) provides for the suspension of benefits if a claimant unjustifiably refuses medical treatment. "Once a physician is selected, it is well settled that an employee who is referred for additional medical services by the treating physician must accept the medical service or forfeit compensation for as long as the refusal persists." Schwab Constr. v. McCarter, 25 Va. App. 104, 109, 486 S.E.2d 562, 564-65 (1997) (quoting Biafore v. Kitchin Equipment Co., 18 Va. App. 474, 479, 445 S.E.2d 496, 498 (1994)). In addressing this issue, "[t]he question is not whether the recommended procedure was justified, but whether the patient's refusal to submit to it was justified. The matter of justification must be considered from the viewpoint of the patient and in the light of the information which was available to him." Holland v. Virginia Bridge & Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867, 868 (1990). The Court of Appeals could not say that the commission erred when it held that claimant unjustifiably refused medical treatment. Claimant's primary treating physician Dr. Fatehi recommended that claimant undergo Dr. Barr's proposed treatment regimen. And although claimant testified that she did not think that Dr. Barr's treatment would help, the record also reflects that claimant had a conflict with Dr. Barr because of Dr. Barr's conclusion that claimant was not suffering from RSD. Especially considering Dr. Fatehi's August 11, 1997 recommendation that claimant pursue Dr. Barr's treatment plan, there is nothing in the record that tends to support claimant's concern that Dr. Barr's proposed course of treatment would be counter-productive. Kim Branch Harris v. VA Beach General Hosp., Record No. 0700-99-1 (September 14, 1999). WP Version.
Code Sec. 65.2-603(B) bars a claimant from receiving further compensation if the claimant unjustifiably refuses to accept medical services provided by the employer. Whether or not a claimant has "refused" medical treatment is a question of fact. See Stump v. Norfolk Shipbuilding & Dry Dock Corp., 187 Va. 932,934-35, 48 S.E.2d 209, 210 (1948) (treating the commission's determination of whether a claimant has refused medical services as a question of fact); see also Chesapeake Masonry Corp. v. Wiggington, 229 Va. 227, 229-30, 327 S.E.2d 121, 122 (1985) (holding that the commission's finding that the claimant unjustifiably refused medical care was supported by credible evidence and therefore binding on appeal). It is fundamental that "factual findings of the commission are binding on appeal "if supported by credible evidence. Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 332, 381 S.E.2d 359, 360 (1989); see Code Sec. 65.2-706(A).Claimant's current unsuccessful attempt to quit smoking was not a "conscious or willful refusal to follow the treatment recommendations of her physicians regarding smoking." Shawnee Management Corporation v. Rhonda C. Hamilton, Record No. 0434-96-3 (November 4, 1997).
Code Sec. 65.2-603(B) provides for the suspension of benefits if a claimant unjustifiably refuses medical treatment. "Once a physician is selected, it is well settled that an employee who is referred for additional medical services by the treating physician must accept the medical service or forfeit compensation for as long as the refusal persists." Biafore v. Kitchin Equipment Co., 18 Va. App. 474, 479, 445 S.E.2d 496, 498 (1994). In such a case, "[t]he question is not whether the recommended procedure was justified, but whether the patient's refusal to submit to it was justified. The matter of justification must be considered from the viewpoint of the patient and in light of the information which was available to him." Holland v. Virginia Bridge Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867,868 (1990). "Medical management of the employee is not to be directed by the employer. An employer can require an employee to select an attending physician from its panel of three, but only an attending physician or the [Workers' Compensation] Commission may require an employee to see another physician." Richmond Memorial Hospital v. Allen, 3 Va. App. 314, 318, 349 S.E.2d 419, 422(1986).
A cure by words alone, a "verbal cure," of an unjustified refusal of medical treatment, is effective if it is made in good faith. In the analogous area of the cure of a refusal of selective employment or vocational rehabilitation, courts have held that a verbal cure is effective if it is made in good faith. See Christiansen v. Metro Bldg. Supply, Inc., 18 Va. App. 721, 724, 447 S.E.2d 519, 521 (1994), aff'd on reh'g, 19 Va. App. 513, 453 S.E.2d 302 (1995) (refusal of selective employment may be cured by claimant's offer to accept the previously refused employment if made "in good faith"); James v. Capitol Steel Constr. Co., 8 Va. App. 512, 518, 382 S.E.2d 487, 490 (1989) ("[a]ssuming that the refusal to cooperate with vocational rehabilitation could be cured by a verbal statement of willingness to cooperate . . . it must be made in good faith"); Thompson v. Hampton Institute, 3 Va. App. 668, 671, 353 S.E.2d 316, 317 (1987) (claimant may cure refusal of selective employment when he "in good faith advises his employer that he is willing to accept such work"). Courts have "historically treated and discussed [these similar areas] in conjunction with one another," Hercules, Inc. v. Carter, 13 Va. App. 219, 223, 409 S.E.2d 637, 639 (1991), aff'd on reh'g en banc, 14 Va. App. 886, 419 S.E.2d 438 (1992). For a verbal cure of an unjustified refusal of medical care to be effective, it must be made in good faith. A claimant must demonstrate his or her good faith through an affirmative action or a showing of circumstances mitigating the failure to act. Fairfax County School Board v. Ellen M. Rose, Record No. 1700-97-4 (January 26, 1999).
The rule is well settled that nursing services, whether provided at a medical facility or in a patient's home, "are included among the medical benefits that an employer and insurer must furnish, provided the services are necessary and authorized." Warren Trucking Co. v. Chandler, 221 Va. 1108,1115, 277 S.E.2d 488, 492-93 (1981). In applying the rule, the following factors are relevant: [T]he employer must pay for the care when it is performed by a spouse, if (1) the employer knows of the employee's need for medical attention at home as a result of the industrial accident; (2) the medical attention is performed under the direction and control of a physician, that is, a physician must state home nursing care is necessary as the result of the accident and must describe with a reasonable degree of particularity the nature and extent of duties to be performed by the spouse; (3) the care rendered by the spouse must be of the type usually rendered only by trained attendants and beyond the scope of normal household duties; and (4) there is a means to determine with proper certainty the reasonable value of the services performed by the spouse. Id. at 1116, 277 S.E.2d at 493. In Chandler, the Supreme Court held that the services provided by Chandler's wife were not of the kind normally provided by a trained medical care provider. See id. at 1118,277 S.E.2d at 494. The evidence proved that Chandler's wife's "care consisted of bathing, shaving, feeding, assistance in walking, help with braces, aid upon falling, driving[,] and administering routine medication." Id. Services provided by claimant’s wife are "of the type usually rendered only by trained attendants and beyond the scope of normal household duties." Id. at 1116, 277 S.E.2d at 493. A spouse may receive reimbursement for necessary medical attention only if "there is a means to determine with proper certainty the reasonable value of the services performed by the spouse." Warren Trucking Co., Inc. v. Chandler, 221 Va.1108, 1116, 277 S.E.2d 488, 493 (1981).
Without a referral from an authorized treating physician, Code Sec. 65.2-603(C) provides for treatment by an unauthorized physician in an 'emergency' or 'for other good reason.'" Shenandoah Prods., Inc. v. Whitlock, 15 Va. App. 207, 212, 421 S.E.2d 483, 485 (1992). [I]f the employee, without authorization but in good faith, obtains medical treatment different from that provided by the employer, and it is determined that the treatment provided by the employer was inadequate treatment for the employee's condition and the unauthorized treatment received by the claimant was medically reasonable and necessary treatment, the employer should be responsible, notwithstanding the lack of prior approval by the employer. Id. at 212, 421 S.E.2d at 486. The claimant did not present evidence to prove that he sought unauthorized treatment in good faith, that the treating physician rendered inadequate treatment, or that the unauthorized treatment received by the claimant was medically reasonable and necessary. Therefore, we cannot say as a matter of law that the commission erred in failing to apply the "other good reasons" exception contained in Code Sec. 65.2-603(C), or in concluding that the employer was not responsible for the cost of the unauthorized treatment. "The mere fact that the unauthorized treatment is an acceptable method of treating the condition does not mean that the treatment should be paid for by the employer." Shenandoah Products, 15 Va. App. at 213, 421 S.E.2d at 486. Panagiotis G. Haramis v. G.T. Painting & Construction Company, Inc., Record No. 2489-94-1 (May 16, 1995).
On April 29, 1996, claimant strained his back while working in a manhole. He felt a "bad pop" in his back and a "shock" from the "top of [his] head to the bottom of [his] feet." claimant had a history of spondylolisthesis and prior back injuries. an MRI exam on May 3, 1996, revealed Grade I spondylolisthesis at L5-S1, minimal disc protrusion at L3-4 and L4-5 with degenerative disc disease, and "findings suspicious for herniated nucleus pulposus." Another MRI several weeks later revealed a bulging disk at C4-5 and C5-6 and a herniation at C6-C7. On October 9, 1996, claimant’s treating physician performed a lumbar fusion at L4-5 and L5-S1. Claimant’s neck and arm complaints continued and claimant’s doctor believed the back injury and neck injury and treatment was causally related to the work-related incident on April 29, 1996. Claimant underwent anterior cervical diskectomy on February 26, 1997. Although another doctor disagreed with the treating physician’s opinions on causation, credible evidence in the record established a causal connection between the accident on April 29, 1996 and claimant's continued back disability and treatment and his neck injury and treatment. "`So long as a causal relationship between the industrial accident and the . . . [treatment rendered] is shown, the employer is financially responsible for the medical attention which the attending physician deems necessary.'" Papco Oil Co. v. Farr, 26 Va. App. 66, 74, 492 S.E.2d 858, 861 (1997) (quoting Lynchburg Foundry Co. v. Goad, 15 Va. App. 710,714, 427 S.E.2d 215, 217-18 (1993)). Claimant was treated conservatively at first before surgery for his injuries caused by his accident was attempted. Claimant's treatment was necessary and reasonable. "Whether an employer is responsible for medical expenses . . . depends upon . . . (3) whether the treating physician made a referral to the patient." Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). When claimant’s treating physician decided to relocate his practice, he recommended Dr. Joiner for further treatment but claimant requested a referral to Dr. Knox and Dr. Mathews. The treating physician, in attempting to accommodate the wishes of a rehabilitation nurse and claimant, created a situation where the nurse believed the referral was to Dr. Joiner and claimant believed the referral was to Drs. Knox and Mathews. Drs. Knox and Mathews became claimant's authorized treating physicians. City of Martinsville v. Timothy Scott Turner, Record No. 2753-98-2 (July 27, 1999). WP Version.
The commission could properly conclude that trigger point injection therapy that provided temporary symptomatic relief was reasonable and necessary where other modalities of treatment were ineffective, and the carrier had refused to pay for referrals for other treatment. These facts also did not warrant a change in physicians. Town of Washington Water Works v. Johnny Ray Pullen, Record No. 1773-98-4 (December 15, 1998).
Claimant’s condition, though in part due to congenital abnormality of the craniocervical junction, was the direct result of a fall at work. The claimant’s doctor stated that the surgery performed to correct the abnormality was the direct result of this fall. The surgery would not have been performed had she not fallen. As the treating neurosurgeon, the doctor’s opinions were entitled to be given great weight by the commission. See Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986).
Code Sec. 65.2-603(A)(1) provides in pertinent part as follows: As long as necessary after an accident, the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician . . . and such other necessary medical attention. "'So long as a causal relationship between the industrial accident and the . . . [treatment rendered] is shown, the employer is financially responsible for the medical attention which the attending physician deems necessary, subject to review by the Commission.'" Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 714, 427 S.E.2d 215, 217-18 (1993) (quoting Jensen Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525 (1985)). Moreover, Code Sec. 65.2-603 should be construed liberally in favor of the claimant, in harmony with the Act's humane purpose. See Goad, 15 Va. App. at 713, 427 S.E.2d at 217. Credible medical evidence established that claimant's ITP was diagnosed during medically necessary treatment of his compensable back injury. To continue treatment of claimant's back with further surgeries in July and September, 1994, claimant's physicians required limited treatment of the ITP to normalize his platelet count. Thus, treatment of the pre-existing ITP was a medically necessary adjunct to the successful completion of that care required by claimant's work-related back injury. Accordingly, under the facts of this case, the commission did not err in holding employer responsible for medical treatment and for medical expenses incurred by claimant to treat the pre-existing condition. Claimant also had to be hospitalized for DVT and pulmonary emboli as a result of inactivity secondary to his multiple lumbar surgeries and residual low back and leg pain. The May 1995 treatment was necessitated by a recurrence of the DVT and pulmonary embolism, which flowed from the compensable injury. Therefore, because the DVT and pulmonary emboli followed as natural consequences of the compensable back injury, the commission did not err in holding employer responsible for medical expenses related to treatment of those problems. See Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 283, 348 S.E.2d 876, 879 (1986). Even if claimant's prednisone therapy also contributed to cause his DVT and pulmonary embolism, employer is still responsible for the cost of medical treatment related to those conditions under the "two causes rule." That rule provides that a condition which has two causes, one related to a work injury, and one not, is compensable and the treatment of that condition will be the responsibility of the employer. See Shelton v. Ennis Bus. Forms, Inc., 1 Va. App. 53, 55, 334 S.E.2d 297, 299 (1985). The medical records also established that claimant's doctor prescribed coumadin therapy to prevent pulmonary emboli, which might be caused by claimant's left lower extremity DVT. Because the DVT flowed as a natural consequence of the compensable back injury, employer is responsible for any necessary medical treatment related to the DVT. Accordingly, the commission did not err in holding employer responsible for the cost of the coumadin therapy. Papco Oil Company v. William Kenneth Farr, Record No. 0989-97-1 (November 18, 1997).
Although claimant's cervical disc condition was a distinct injury suffered in claimant's compensable accident, and a new claim for it was time-barred, it was nevertheless causally related to the compensable accident. The commission further found that "treatment for the claimant's cervical condition is necessary treatment related to the compensable accident to the extent that it is necessary to treat symptoms related to the shoulder injury." Thus, the commission held that because the proposed cervical disc surgery was necessary to treat the compensable right shoulder injury, the claim for that surgery was not time-barred and employer was responsible for its cost. Credible evidence supported these findings. Claimant's doctor opined that it was difficult for him to separate claimant's shoulder complaints from her disc symptoms, and he concluded that the disc surgery should improve claimant's right upper trapezius pain and might improve her rotator cuff tenderness. The commission could reasonably conclude that the disc surgery was necessary to treat the compensable shoulder injury, as well as the disc condition. Quality Inn Executive v. Zoila L. Umana, Record No. 1593-98-4 (June 15, 1999). WP Version.
Claimant's request for reimbursement for the cost of air conditioning repairs to vehicles other than his 1989 Plymouth Voyager was properly denied. In order to hold an employer liable for medical expenses pursuant to Code Sec. 65.2-603, claimant bore the burden of proving that those expenses were reasonable, necessary, and causally related to his compensable injury. The award of medical benefits deemed necessary by the Commission must be balanced against a reasonableness standard that compels the employer to pay for such benefits. First, the employer should be liable only for the cost of air conditioning repairs to the claimant's 1989 Plymouth Voyager, and the employer should be allowed to determine the necessity and reasonableness of future repairs before such costs are incurred. Second, the commission properly refused to hold employer liable to reimburse him for interest, i.e., finance charges, and other "out-of-pocket" costs associated with pursuing his claim. The Workers' Compensation Act does not provide any basis for an award of such costs. Third, res judicata applies "where there is a valid, personal judgment obtained by a defendant on the merits of an action. The judgment bars relitigation of the same cause of action, or any part thereof which could have been litigated between the same parties and their privies." K & L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). Because the issue of employer's liability for the cost of the July 25, 1995 home air conditioning expenses was previously decided against claimant and in favor of employer, the commission did not err in ruling that claimant could not seek to relitigate that issue. Finally, claimant's evidence did not limit his travel to direct routes to/from medical treatment or repair facilities. There was therefore no basis to assess travel costs against the employer, since the claimant essentially declined to present such evidence of reasonable travel, but only evidence of travel that was presumably inflated. Charles Francis Carter v. Arlington Co. Fire Dpt., Record No. 2394-98-4 (April 20, 1999). WP Version.
Code Sec. 65.2-603 (formerly Code Sec. 65.1-88) provides that "[a]s long as necessary after an accident, the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician . . . and such other necessary medical attention." In Warren Trucking Co. v. Chandler, 221 Va. 1108, 1116, 277 S.E.2d 488, 493 (1981), the Supreme Court set forth the standards to be applied in determining what constitutes "other necessary medical attention." One of those standards requires that "the medical attention is performed under the direction and control of a physician, . . . [who] must state [that] home nursing care is necessary . . . and must describe with a reasonable degree of particularity the nature and extent of duties to be performed by the [aide]." Id. In addition, "the care rendered by the [aide] must be of the type usually rendered only by trained attendants and beyond the scope of normal household duties." Id. In this case, no evidence in the record established that a friend of the claimant's performed "medical attention" under the direction and control of a physician. The doctor merely described "assistance with transfers, lifting and carrying to take tub baths, lifting and carrying to get in and out of the car, and lifting and carrying to do activities that would avoid excessive stress to the lower extremities which were severely injured." None of these duties, when considered in light of the claimant's condition and the extent of his disability, is of the type usually rendered by trained attendants. Chandler, 221 Va. at 1118, 277 S.E.2d at 494. Robert M. Anselmo v. Cherrydale Motors, Inc., Record No. 2503-98-3 (May 4, 1999). WP Version.
In Tageldin v. St. Paul Fire & Marine Insurance Company, VWC File No. 118-93-66 (3-12-92), payment was sought for home services that included cleaning bathrooms, changing linen in the bedrooms, helping take out trash and helping carry laundry to the first floor of the injured worker's apartment building. The commission held that those types of services did not qualify as "other medical attention" and that they were not compensable under the Act.
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