COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Alston and Senior Judge Coleman Argued at Richmond, Virginia
AMERICAN ARMOURED FOUNDATION, INC. AND TECHNOLOGY INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 1968-11-2 JUDGE ROSSIE D. ALSTON, JR. MAY 1, 2012 FRANK LETTERY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
S. Vernon Priddy III (Two Rivers Law Group, P.C., on brief), for appellants.
Gregory O. Harbison (The Harbison Law Firm, PLLC, on brief), for appellee.
American Armoured Foundation, Inc. and its insurer, Technology Insurance Company,
(appellants) appeal a decision of the Virginia Workers’ Compensation Commission (the
commission) requiring them to pay for Frank Lettery’s (claimant) YMCA membership and
mileage for his unsupervised physician-directed independent pool therapy following a
compensable workplace injury. Appellants contend that the commission erred in two respects.
First, appellants argue that the commission erred in rejecting their claim that claimant’s pool
therapy did not qualify as “medical attention” because the pool therapy was not performed under
the direction and control of a physician. And second, appellants contend that the commission
erred in reversing the deputy commissioner’s opinion and in ordering appellants to pay for
claimant’s YMCA membership and to reimburse him for mileage to and from the YMCA for the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. independent pool therapy. For the following reasons, we conclude that the commission
committed no error and affirm the decision below.
I. BACKGROUND 1
On January 30, 2006, claimant suffered a compensable workplace accident injuring his
right hip, groin, femur, and knee. In March 2006, claimant’s orthopedic surgeon, Dr. Campbell,
prescribed physical therapy, including aquatic therapy, to treat claimant’s right hip fracture.
Claimant underwent formal, supervised pool therapy for a period of approximately eight months.
Following this period of supervised therapy, Dr. Joiner, claimant’s treating physician, instructed
claimant to perform independent pool therapy two to three days per week. Dr. Joiner wrote
claimant a prescription in June 2007 for independent pool therapy for six months. Claimant
informed the commission during his testimony that he followed a regimen he learned in the 2006
formal pool therapy program during this time and that he had to switch from supervised to
independent therapy because the supervised therapy was costing appellants too much money.
When claimant saw Dr. Joiner for a follow-up visit in September 2007, he told Dr. Joiner
that appellants never authorized the independent pool therapy.
In February 2008, a deputy commissioner awarded claimant continuing temporary total
disability benefits and medical benefits, including reasonable mileage reimbursement. From that
time through April 2010, claimant continued his pool therapy and followed up regularly with
Dr. Joiner.
1 As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.
-2- In early May 2010, Dr. Campbell saw claimant and noted that claimant reported
increased hip pain after stopping his pool therapy in April 2010. Dr. Campbell recommended
that claimant restart his pool therapy. In July 2010, Dr. Joiner saw claimant again and noted that
his condition had worsened after he stopped the pool therapy because the insurance carrier
refused to pay for his YMCA membership. Dr. Joiner continued “to recommend independent
pool therapy as a cost-effective way to manage patient’s [claimant’s] condition.”
In January and September 2010, claimant filed change-in-condition applications seeking
compensation for the YMCA membership and a mileage reimbursement so that he could follow
Dr. Joiner’s recommendation to continue his independent pool therapy. The deputy
commissioner held an evidentiary hearing on the matter in October 2010 and denied claimant’s
request, finding that the independent pool therapy did not qualify as necessary medical attention
because it was not supervised by medical professionals.
On review, the commission reversed the deputy commissioner’s decision, finding that
when an evaluation of the evidence demonstrates that a treating physician has prescribed specific
medical treatment for an injured employee, the burden then shifts to the employer to prove that
the treatment is unreasonable or unnecessary. Applying that principle to this case, the
commission found that claimant’s treating physicians had prescribed both formal and
independent pool therapy for claimant’s workplace injury and found nothing in the record to
suggest that this type of therapy was unreasonable or unnecessary for claimant. In reaching its
conclusion, the commission pointed to its previous decisions in other cases requiring employers
to pay for gym memberships for similar types of pool therapy. Accordingly, the commission
-3- reversed the deputy commissioner’s decision and ordered appellants to pay for claimant’s
YMCA membership and compensate him for reasonable mileage to and from the YMCA.
This appeal followed.
II. ANALYSIS
Although appellants assign two separate errors to the commission’s determination, both
require us to analyze whether claimant’s independent pool therapy qualifies as necessary medical
attention under Code § 65.2-603. Accordingly, we will consider them together.
Appellants contend that the commission erred in requiring them to pay for claimant’s
YMCA membership and mileage to support his independent pool therapy because the pool
therapy does not qualify as necessary medical attention. “[T]he question of whether the disputed
medical treatment was necessary within the meaning of Code § 65.2-603 is a mixed question of
law and fact.” Papco Oil Co. v. Farr, 26 Va. App. 66, 73-74, 492 S.E.2d 858, 861 (1997)
(internal quotation marks and citation omitted). We review mixed questions of law and fact on
appeals from the commission de novo. Uninsured Employer’s Fund v. Gabriel, 272 Va. 659,
662-63, 636 S.E.2d 408, 411 (2006).
Code § 65.2-603 states in pertinent part: “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 chosen by the injured employee from a panel of at least three physicians selected by
the employer and such other necessary medical attention.” We have consistently held that “[i]t is
the claimant’s burden to demonstrate that the treatment for which he seeks payment is causally
related to the accident, is necessary for treatment of his compensable injury, and is recommended
by an authorized treating physician.” Portsmouth Sch. Bd. v. Harris, 58 Va. App. 556, 563, 712
-4- S.E.2d 23, 26 (2011) (citing Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199-200, 336
S.E.2d 903, 906 (1985)).
We agree with the commission that here claimant met his burden to prove each of the
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Alston and Senior Judge Coleman Argued at Richmond, Virginia
AMERICAN ARMOURED FOUNDATION, INC. AND TECHNOLOGY INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 1968-11-2 JUDGE ROSSIE D. ALSTON, JR. MAY 1, 2012 FRANK LETTERY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
S. Vernon Priddy III (Two Rivers Law Group, P.C., on brief), for appellants.
Gregory O. Harbison (The Harbison Law Firm, PLLC, on brief), for appellee.
American Armoured Foundation, Inc. and its insurer, Technology Insurance Company,
(appellants) appeal a decision of the Virginia Workers’ Compensation Commission (the
commission) requiring them to pay for Frank Lettery’s (claimant) YMCA membership and
mileage for his unsupervised physician-directed independent pool therapy following a
compensable workplace injury. Appellants contend that the commission erred in two respects.
First, appellants argue that the commission erred in rejecting their claim that claimant’s pool
therapy did not qualify as “medical attention” because the pool therapy was not performed under
the direction and control of a physician. And second, appellants contend that the commission
erred in reversing the deputy commissioner’s opinion and in ordering appellants to pay for
claimant’s YMCA membership and to reimburse him for mileage to and from the YMCA for the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. independent pool therapy. For the following reasons, we conclude that the commission
committed no error and affirm the decision below.
I. BACKGROUND 1
On January 30, 2006, claimant suffered a compensable workplace accident injuring his
right hip, groin, femur, and knee. In March 2006, claimant’s orthopedic surgeon, Dr. Campbell,
prescribed physical therapy, including aquatic therapy, to treat claimant’s right hip fracture.
Claimant underwent formal, supervised pool therapy for a period of approximately eight months.
Following this period of supervised therapy, Dr. Joiner, claimant’s treating physician, instructed
claimant to perform independent pool therapy two to three days per week. Dr. Joiner wrote
claimant a prescription in June 2007 for independent pool therapy for six months. Claimant
informed the commission during his testimony that he followed a regimen he learned in the 2006
formal pool therapy program during this time and that he had to switch from supervised to
independent therapy because the supervised therapy was costing appellants too much money.
When claimant saw Dr. Joiner for a follow-up visit in September 2007, he told Dr. Joiner
that appellants never authorized the independent pool therapy.
In February 2008, a deputy commissioner awarded claimant continuing temporary total
disability benefits and medical benefits, including reasonable mileage reimbursement. From that
time through April 2010, claimant continued his pool therapy and followed up regularly with
Dr. Joiner.
1 As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.
-2- In early May 2010, Dr. Campbell saw claimant and noted that claimant reported
increased hip pain after stopping his pool therapy in April 2010. Dr. Campbell recommended
that claimant restart his pool therapy. In July 2010, Dr. Joiner saw claimant again and noted that
his condition had worsened after he stopped the pool therapy because the insurance carrier
refused to pay for his YMCA membership. Dr. Joiner continued “to recommend independent
pool therapy as a cost-effective way to manage patient’s [claimant’s] condition.”
In January and September 2010, claimant filed change-in-condition applications seeking
compensation for the YMCA membership and a mileage reimbursement so that he could follow
Dr. Joiner’s recommendation to continue his independent pool therapy. The deputy
commissioner held an evidentiary hearing on the matter in October 2010 and denied claimant’s
request, finding that the independent pool therapy did not qualify as necessary medical attention
because it was not supervised by medical professionals.
On review, the commission reversed the deputy commissioner’s decision, finding that
when an evaluation of the evidence demonstrates that a treating physician has prescribed specific
medical treatment for an injured employee, the burden then shifts to the employer to prove that
the treatment is unreasonable or unnecessary. Applying that principle to this case, the
commission found that claimant’s treating physicians had prescribed both formal and
independent pool therapy for claimant’s workplace injury and found nothing in the record to
suggest that this type of therapy was unreasonable or unnecessary for claimant. In reaching its
conclusion, the commission pointed to its previous decisions in other cases requiring employers
to pay for gym memberships for similar types of pool therapy. Accordingly, the commission
-3- reversed the deputy commissioner’s decision and ordered appellants to pay for claimant’s
YMCA membership and compensate him for reasonable mileage to and from the YMCA.
This appeal followed.
II. ANALYSIS
Although appellants assign two separate errors to the commission’s determination, both
require us to analyze whether claimant’s independent pool therapy qualifies as necessary medical
attention under Code § 65.2-603. Accordingly, we will consider them together.
Appellants contend that the commission erred in requiring them to pay for claimant’s
YMCA membership and mileage to support his independent pool therapy because the pool
therapy does not qualify as necessary medical attention. “[T]he question of whether the disputed
medical treatment was necessary within the meaning of Code § 65.2-603 is a mixed question of
law and fact.” Papco Oil Co. v. Farr, 26 Va. App. 66, 73-74, 492 S.E.2d 858, 861 (1997)
(internal quotation marks and citation omitted). We review mixed questions of law and fact on
appeals from the commission de novo. Uninsured Employer’s Fund v. Gabriel, 272 Va. 659,
662-63, 636 S.E.2d 408, 411 (2006).
Code § 65.2-603 states in pertinent part: “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 chosen by the injured employee from a panel of at least three physicians selected by
the employer and such other necessary medical attention.” We have consistently held that “[i]t is
the claimant’s burden to demonstrate that the treatment for which he seeks payment is causally
related to the accident, is necessary for treatment of his compensable injury, and is recommended
by an authorized treating physician.” Portsmouth Sch. Bd. v. Harris, 58 Va. App. 556, 563, 712
-4- S.E.2d 23, 26 (2011) (citing Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199-200, 336
S.E.2d 903, 906 (1985)).
We agree with the commission that here claimant met his burden to prove each of the
three requirements to qualify his independent pool therapy as necessary medical attention under
Code § 65.2-603. The reports from both of claimant’s treating physicians indicated that his
independent pool therapy is part of a continuing course of treatment which began with his
compensable work-related injury. Moreover, appellants do not argue that claimant has failed to
establish the requisite causal connection between the medical treatment he is requesting and his
workplace accident. Similarly, appellants do not contend that claimant’s independent pool
therapy is unnecessary to treat his compensable injury. Significantly, claimant’s doctors both
noted that his pain and mobility worsened when he stopped the pool therapy after appellants
ceased payments for his YMCA membership and mileage. Finally, it cannot be reasonably
contested that claimant demonstrated that his pool therapy was “recommended by an authorized
treating physician.” Id. Claimant met his burden under this analytical framework by introducing
Dr. Joiner’s prescription for the pool therapy and Dr. Campbell’s office notes which urged
continuation of the pool therapy after he initially prescribed it in 2006. Interestingly, appellants
initially complained about the cost of the supervised pool therapy, and claimant and his treating
physician accommodated this concern by pursuing unsupervised pool therapy. Accordingly, we
agree with the commission and affirm its decision requiring appellants to pay for claimant’s
YMCA membership and mileage to and from the YMCA so that he can continue with his
independent pool therapy.
Appellants’ primary argument rests on the deputy commissioner’s conclusion that
claimant’s pool therapy was not compensable because it was not “medically supervised”
-5- regarding the types of exercises, or the duration and frequency of the visits. Appellants cite the
Supreme Court’s decision in Warren Trucking v. Chandler, 221 Va. 1108, 227 S.E.2d 488
(1981), in support of this argument. However, Warren Trucking was a limited decision in which
the Supreme Court established a test for home nursing care provided by a family member who is
not a professional nurse. Id. at 1115, 227 S.E.2d at 492-93. Because this case does not involve
home nursing care by a family member who is not a professional nurse, Warren Trucking is
inapposite.
From the distinct and conspicuous circumstances in this case and meeting our
responsibility to construe the Act liberally in favor of the injured employee, Corporate Resource
Management Inc. v. Southers, 51 Va. App. 118, 126, 655 S.E.2d 34, 38 (2008) (en banc), we
find that the commission did not err in concluding that claimant’s YMCA membership and
mileage in support of his independent pool therapy were “other necessary medical attention”
pursuant to Code § 65.2-603.
III. CONCLUSION
For the foregoing reasons, we affirm the commission’s decision.
Affirmed.
-6-