Fairfax County School Board v. Sally R Fish

• Court: Court of Appeals of Virginia
• Decided: November 19, 2002
• Docket: 1159024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Agee Argued at Alexandria, Virginia

FAIRFAX COUNTY SCHOOL BOARD MEMORANDUM OPINION* BY v. Record No. 1159-02-4 JUDGE LARRY G. ELDER NOVEMBER 19, 2002 SALLY R. FISH

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Michael N. Salveson (Hunton & Williams, on briefs), for appellant.

(Sally R. Fish, pro se, on brief). Appellee submiting on brief.

The Fairfax County School Board (employer) appeals from a

decision of the Workers' Compensation Commission (the

commission) holding that Sally R. Fish (claimant) is entitled to

medical benefits for ongoing palliative treatment. On appeal,

employer contends that (1) the commission erroneously concluded

claimant's fibromyalgia is causally related to her industrial

injury by accident, (2) the commission failed to make a finding

regarding whether ongoing treatment was "reasonable and

necessary medical attention" within the meaning of Code

§ 65.2-603, and (3) the evidence does not support a finding that

it was "reasonable and necessary." We hold the commission

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. implicitly found the treatment was medically necessary and that

credible evidence supported both that finding and the finding

that claimant's fibromyalgia was causally related to her

compensable industrial injury. Thus, we affirm.

On appeal of a decision of the commission, we construe the

evidence in the light most favorable to the party prevailing

below, and we must uphold the commission's findings of fact if

the record contains credible evidence to support them. See,

e.g., Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 712, 427

S.E.2d 215, 217 (1993).

Code § 65.2-603(A)(1) provides that for "[a]s long as

necessary after a [compensable industrial] accident, the

employer shall furnish or cause to be furnished, free of charge

to the injured employee, a physician chosen [in the manner

prescribed by the Workers' Compensation Act] and such other

necessary medical attention." Whether the employer is

responsible for medical expenses under this Code section

depends, inter alia, upon "(1) whether the medical service was

causally related to the industrial injury; [and] (2) whether

such other medical attention was necessary." Volvo White Truck

Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).

A claimant bears the burden of proof on these issues by a

preponderance of the evidence. McGregor v. Crystal Food Corp.,

1 Va. App. 507, 508, 339 S.E.2d 917, 918 (1986). As with any

medical determination to be made under the Act, the opinion of - 2 - the treating physician is entitled to great weight. See, e.g.,

Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339

S.E.2d 570, 572 (1986).

A.

CAUSATION

An employer's liability for an industrial injury extends to

"'all the medical consequences and sequelae that flow from the

primary injury.'" American Filtrona Co. v. Hanford, 16 Va. App.

159, 163, 428 S.E.2d 511, 513 (1993) (quoting 1 Arthur Larson,

The Law of Workmen's Compensation § 13.11 (1992)). "[A]

'question [of causation] raised by "conflicting expert medical

opinions" is one of fact.'" Georgia-Pacific Corp. v. Robinson,

32 Va. App. 1, 5, 526 S.E.2d 267, 268 (2000) (quoting Eccon

Constr. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799

(1981)). However, once that conflict has been resolved in favor

of the party prevailing below, whether the evidence is

sufficient to prove causation is a question of law subject to

independent review. See Morris v. Morris, 238 Va. 578, 579, 385

S.E.2d 858, 865 (1985).

Here, the commission was entitled to accept the opinions of

claimant's treating physicians, Drs. A. Bruce Thomas, II, and

Thomas M. Fogarty, over those of employer's experts, Drs. Brian

Schulman and Roger V. Gisolfi. Further, the opinions of

Drs. Thomas and Fogarty, viewed in conjunction with the record

as a whole, were sufficient to support the commission's finding - 3 - that claimant's fibromyalgia was a "'medical consequence[] . . .

flow[ing] from [her] primary injury.'" Hanford, 16 Va. App. at

163, 428 S.E.2d at 513 (quoting 1 Larson, supra, § 13.11).

Dr. Thomas is board certified in physical medicine and

rehabilitation with a focus on pain management and has several

years experience in treating patients with fibromyalgia.

Dr. Thomas and his partner treated claimant for her fibromyalgia

for three years before the present proceedings began.

Dr. Thomas explained that fibromyalgia is "a complex, chronic

condition, which causes diffuse pain in the body's muscles,

tendons, ligaments and other soft tissues and often [causes]

fatigue." He further explained that fibromyalgia is commonly

triggered by a physical trauma to the body, such as the one

claimant experienced on April 29, 1987.

Dr. Thomas opined, based on his treatment of claimant,

"[i]t is medically probable that [claimant's] fibromyalgia was

caused by her 1987 accident," and "to a reasonable degree of

medical certainty, I can attribute [claimant's] present

condition to her accident in 1987." Dr. Thomas noted, as

supported by claimant's medical records, that claimant was

diagnosed with myofascial pain, a component of fibromyalgia,

shortly following her 1987 accident. Dr. Thomas noted that

fibromyalgia is a difficult condition to diagnose and that

claimant could not have received a diagnosis of fibromyalgia

- 4 - when she first displayed symptoms in 1987 because the diagnostic

criteria for the condition were not established until 1990.

Dr. Fogarty rendered a similar opinion. Dr. Fogarty is

board certified in internal medicine and psychiatry, treated

claimant for four years prior to these proceedings, and reviewed

claimant's medical records prior to rendering his opinion

regarding her condition. Dr. Fogarty noted that, in his

treatment of claimant, he observed "muscular spasm related to

her fibromyalgia [which] was objective and palpable." He

further observed that claimant's medical records contain a 1987

diagnosis of myofascial pain syndrome and "clearly [show]

evidence of a myofascial pain syndrome which dates to [her

compensable industrial] injury in 1987. Her pain became severe

within months of her fall at work, and her pain began to spread

within weeks of the incident." Dr. Fogarty explained that

fibromyalgia "is a term which is frequently interchanged with

myofascial pain" and that claimant received an express diagnosis

of fibromyalgia from Dr. Katherine Maurath in 1996.

Ultimately, Dr. Fogarty opined that claimant's work injury

of April 29, 1987, "continued and progressed into a more

generalized myofascial or fibromyalgia pain syndrome." He noted

that "the weight of the evidence is clearly indicated [in

claimant's case]" by "the chronology of [claimant's] history,"

"the amount of her records that are devoted towards her physical

therapy modalities," and the absence of "suggestion of any - 5 - secondary gain or of a primary psychiatric condition that would

explain the course of her illness."

Finally, the office notes of Dr. Paul A. Buongiorno support

a finding that he, too, believed claimant's fibromyalgia was

causally related to her 1987 injury. Dr. Buongiorno began

treating claimant in conjunction with her admission to the pain

clinic in 1987, when the symptoms from her industrial injury

proved to be both chronic and spreading, and he treated her

continuously, for that condition and others, until 1995.

Although Dr. Buongiorno's first mention of fibromyalgia appears

in his final office note of October 19, 1995, he noted on May

23, 1995, that claimant's problems were merely "a recent flair

of her [ongoing] symptoms." Thus, Dr. Buongiorno's notes also

support a finding that the "severe myofascial pain syndrome" for

which he had treated claimant since 1987 was fibromyalgia and

that it was causally related to her industrial injury.

Employer contends the commission could not rely on

Dr. Fogarty's opinion because he appears to have believed,

incorrectly, that claimant was never able to return to work

following the 1987 injury when the evidence shows she was both

able to work for four years and able to engage in activities

such as skiing without pain or injury in 1992. Employer also

notes claimant required almost no medical attention for over two

years after her retirement and contends that this fact breaks

the causal connection between claimant's subsequently diagnosed - 6 - fibromyalgia and her 1987 industrial injury and shows further

flaws in claimant's expert medical evidence. We disagree.

Dr. Fogarty's opinion letter is unclear on the state of his

knowledge regarding whether claimant returned to work after her

1987 injury. Assuming Dr. Fogarty believed claimant could not

work, his belief, though erroneous, did not render his opinion

inherently incredible or require its automatic rejection.

Whether claimant was able to work was not directly at issue in

the proceedings before the commission, and Dr. Fogarty's

misunderstanding regarding claimant's ability to work, if one

existed, was simply one factor for the commission to evaluate in

considering the evidence and determining what weight to give the

various medical opinions.

As for whether claimant was able to ski in 1992, the record

contains no direct evidence on this point. Rather, it contains

two hearsay statements purportedly made by claimant to two of

her health care providers. The 1992 records of a physical

therapist indicate claimant reported skiing without pain or

injury in 1992, whereas Dr. Fogarty's records indicate

claimant's 2001 statement that she went on a skiing vacation in

1992 but did not ski. The commission was free to disregard this

evidence for any of several reasons. First, as noted above, it

was hearsay evidence the reliability of which was indirectly

challenged by claimant. Second, as the deputy commissioner

found, the evidence established that claimant's condition "waxes - 7 - and wanes and will permit her from time to time to

increase/decrease her medical treatment regimen and activities."

It was undisputed that, from time to time following claimant's

retirement in 1992, she was able to engage in activities such as

aerobics, bicycling and sailing and that some of these

activities were prescribed as treatment for her condition.

Finally, we reject employer's argument that claimant failed

to prove the necessary causal link between her industrial injury

and fibromyalgia because she required less medical treatment for

her condition during the first two-and-one-half years following

her retirement in 1992. The evidence supports a finding that

claimant's symptoms, although decreased, were ongoing during

this period of time and that claimant was able to manage them

herself because she now had time to implement a home exercise

program, to avoid body postures like prolonged standing or

sitting which tended to aggravate her condition, and to rest

when necessary.

Claimant's medical records dating back to 1987 indicate her

reports that job duties such as "a lot of demonstration and

standing," desk work grading papers, and lifting and carrying

books aggravated her condition. She also reported that when she

was on vacation from school, she experienced less pain because

she could "rest, stretch, be physically active, and take care of

herself." When she retired in 1992, she continued weekly

physical therapy but began to exercise more on her own and was - 8 - eventually able to discontinue her physical therapy due to her

self-management program.

Although claimant did not receive physical therapy

specifically for her 1987 back injury again until 1995,

Dr. Buongiorno, who treated claimant for her industrial injury

from 1987 through 1995, referred her to physical therapy for an

unrelated rib injury in 1992 and asked the therapist to "check

[her] old injury," as well. She continued to take Pamelor and

Motrin throughout this period of time. In early 1993, when

Dr. Buongiorno detected "minor muscle knots" in claimant's

cervical region, claimant reported she had been getting less

exercise since breaking her rib. In April 1994, claimant

reported she was taking sailing lessons but still required

Pamelor and Motrin for her back pain. In late 1994,

Dr. Buongiorno noted that claimant was "doing well overall" but

that she continued those medications and received physical

therapy as needed. Finally, claimant reported to Dr. Schulman

that while she remained under the care of Dr. Buongiorno, he

"would periodically inject . . . novocaine[] into . . .

'multiple trigger sites' throughout her back and chest." She

also reported using her TENS unit "for the past ten years."

This evidence supported a finding that claimant's pain, although

decreased, was ongoing following her retirement and was directly

related to the more frequent flare-ups she began to experience

in 1995. - 9 - Thus, the opinions of Drs. Thomas and Fogarty, coupled with

claimant's medical records dating back to her 1987 injury,

constitute credible evidence that claimant's condition,

fibromyalgia, was causally related to her industrial injury,

despite the opinions of Drs. Schulman and Gisolfi that no causal

connection existed. 1

1 Employer also objects to the commission's consideration of the opinion of a massage therapist, Alta Sue Muris, in its analysis of the causation issue, arguing that the ability to express medical opinions lies within the exclusive province of licensed physicians. See, e.g., Woehr v. Bridgewater Home, Inc., No. 151-55-14 (Va. Workers' Comp. Comm'n Dec. 6, 1994) (noting that commission's recognized exception to hearsay rule which permits admission of medical opinions over hearsay objection does not extend to opinions by physical therapists "except to the extent such opinions may be ratified and incorporated into the medical reports of licensed physicians as their own opinions"). Assuming without deciding that the commission's repeated holdings that only doctors can express medical opinions is the correct state of the law, we presume, in the absence of evidence to the contrary, that the commission knew and followed its own repeated prior pronouncements of the law. See Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977) (holding trial court is presumed to know and properly apply the law "[a]bsent clear evidence to the contrary in the record"). Here, the commission merely mentioned in its recitation of the facts Muris's statement that claimant "has no desire to be in a sick role." The commission, in its legal analysis, made no mention of Muris's opinion and said merely that the relatedness of the fibromyalgia to her industrial injury "is readily traceable through the medical records, and is further substantiated by the claimant's current authorized treating physicians." (Emphasis added). Thus, we presume no error occurred. - 10 - B.

"NECESSARY" MEDICAL TREATMENT UNDER CODE § 65.2-603

"[N]ecessary medical attention" under Code § 65.2-603 may

include palliative treatment. H.J. Holz & Son, Inc. v.

Dumas-Thayer, 37 Va. App. 645, 655, 561 S.E.2d 6, 11 (2002).

"Whether 'such other medical attention' be deemed necessary is

for the attending physician or . . . [c]ommission to determine,

not the employer." Jenson Press v. Ale, 1 Va. App. 153, 159,

336 S.E.2d 522, 525 (1985) (decided under former Code § 65.1-88,

predecessor to Code § 65.2-603). It is a mixed question of law

and fact. Goad, 15 Va. App. at 712-13, 427 S.E.2d at 217.

Employer contends both that the commission failed to make a

finding regarding whether ongoing treatment was "reasonable and

§ 65.2-603 and that the evidence does not support such a

finding. Again, we disagree.

The deputy commissioner concluded explicitly that the

challenged treatment was "reasonable and necessary." Although

the commission did not specifically repeat the deputy's finding

on this issue and did not make an express finding that the

treatment was "necessary," it recognized that claimant bore the

burden of proving "such other medical attention was necessary,"

and it expressly affirmed the deputy's "Opinion." Although the

better practice would be for the commission to make express

- 11 - findings of fact and conclusions of law on disputed issues, we

conclude the commission's holding was sufficient.

We hold further that the evidence was sufficient to support

this ruling. Treating Physician Thomas, board certified in

physical medicine and rehabilitation, opined that the symptoms

of fibromyalgia, if untreated, can become "severely disabling

and progressive." He noted that claimant is "extremely

compliant in maintaining a home program of aerobic muscle

conditioning and stretching and reducing as many environmental

triggers as possible." Dr. Fogarty agreed that claimant "has

been a disciplined and compliant patient who has dealt with her

illness in an exemplary fashion."

In addition to claimant's independent efforts, Dr. Thomas

described the various treatments he has prescribed "to improve

[claimant's] symptoms, with much success":

I have prescribed Serzone and Flexeril to reduce her pain, diminish her fatigue, and relax her muscles when she is having severe spasms. Stretching, myofascial release and other physical therapies have been used. [Claimant] requires treatments such as trigger point injections, acupuncture, biofeedback, EEG-driven stimulation and relaxation therapy. These treatments used alone or in combination have been particularly successful in [claimant's] case but provide only temporary relief. They allow her to remain independent in her functional mobility and self care skills and control her pain to a moderate level most of the time. It is evident in my opinion that without these treatments [claimant] would be living an unbearably pain filled dependent life. - 12 - Dr. Fogarty's opinion letter supported this conclusion.

Although Dr. Fogarty did not focus on the treatments claimant

had received in as specific a fashion as Dr. Thomas did, he

expressly noted that "[his] role in [claimant's] treatment has

been to assist in coordinating her physical therapy modalities

and managing her pain as well as associated anxiety, depression

and insomnia with medication, in an effort to optimize her

functional capacity." His records established that he

prescribed ongoing physical therapy, massage therapy,

acupuncture and trigger point injections. Dr. Fogarty also

noted that, in addition to claimant's own efforts, "[claimant]

has been able to maintain a level of function and reduction of

pain due to the diligent efforts of many professionals over an

extended period of time."

Thus, Dr. Thomas's opinion, which the commission found

credible and which employer conceded on brief was "probative" on

"the medical necessity issue," supported by Dr. Fogarty's

opinion, established that claimant's ongoing treatments for her

fibromyalgia, including trigger point injections and physical

therapy, are "necessary" treatments within the meaning of Code

§ 65.2-603. The fact that the record may contain a contrary

opinion from Dr. Schulman is irrelevant because credible

evidence supports the decision of the commission.

- 13 - For these reasons, we hold that the commission implicitly

found the challenged treatment was medically necessary and that

credible evidence supported both that finding and the finding

that claimant's fibromyalgia was causally related to her

Affirmed.

- 14 -