COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Chief Judge Decker, Judge Chaney and Senior Judge Humphreys Argued at Richmond, Virginia
HENRICO COUNTY PUBLIC SCHOOLS, ET AL. MEMORANDUM OPINION* BY v. Record No. 0635-24-2 JUDGE VERNIDA R. CHANEY MARCH 18, 2025 TONYA MACK
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Brian J. McNamara (Scott C. Ford; Peter J. Leyh; Ford Richardson, P.C., on briefs), for appellants.
Corey R. Pollard (Jenkins, Block, & Associates P.C., on brief) for appellee.
Henrico County Public Schools (employer) challenges the Workers’ Compensation
Commission’s finding that Tonya Mack’s functional capacity evaluation (FCE) was “necessary
medical attention” under Code § 65.2-603(A)(1). Employer reasons that Mack’s FCE was not
“necessary medical attention” because it was “for the sole purpose of obtaining a permanency
rating” to establish her entitlement to benefits under the Act. In employer’s view, requiring it to
pay for such an FCE improperly shifts claimants’ litigation expenses onto employers. The
record, however, demonstrates that Mack’s FCE was not obtained for the sole purpose of
obtaining a permanency rating. Rather, it was a diagnostic medical test that her treating
physician ordered while treating lingering issues related to Mack’s compensable injury. Thus,
this Court affirms the Commission’s judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
Mack suffered a compensable injury by accident to her right knee, left wrist, and a finger
on her left hand while working for employer and filed a claim seeking benefits. The deputy
commissioner awarded Mack temporary total disability benefits and a lifetime medical award
under Code § 65.2-603(A).
Through 2021, Dr. William Beach treated Mack’s compensable injuries; he performed
surgery on her right knee, evaluated her at six follow-up appointments, and ordered a course of
formal physical therapy and a home exercise program. In November 2021, Dr. Beach concluded
that Mack had reached maximum medical improvement and instructed Mack to follow-up as
needed. In May 2023, Mack sought authorization for a follow-up appointment with Dr. Beach
because she was experiencing intermittent pain and swelling in her right knee. Employer
authorized the appointment. During the appointment, Dr. Beach and Mack discussed her
“ongoing right knee pain” that “[u]nfortunately” persisted despite the prior surgery and
treatment. Dr. Beach created an “assessment and plan developed based on review of pertinent
history, physical exam, labs, studies, and medications.” The plan included rest, avoiding certain
activities, physical therapy, and strengthening and stretching exercises. Dr. Beach also ordered
an FCE and instructed Mack to return after her FCE “for reevaluation and further discussion.”
Mack then sought authorization and payment for the FCE. Employer denied her claim,
stating that the “initial bill . . . [was] paid.” Employer reasoned that the FCE was not diagnostic
in nature and that the sole purpose for the FCE was to support Mack’s claim for benefits. After a
hearing, the deputy commissioner ordered employer to “pay for authorization of the [FCE].”
1 On appeal from the Commission, we consider the evidence and all reasonable inferences in the light most favorable to the prevailing party below, here the employee, Mack. Jalloh v. Rodgers, 77 Va. App. 195, 200 n.2 (2023) (quoting City of Charlottesville v. Sclafani, 70 Va. App. 613, 616 (2019)). -2- On review before the full Workers’ Compensation Commission, a split Commission
affirmed the deputy commissioner’s judgment. Citing Elliott v. Sam Green Vault Corp., JCN
VA00001108316 (Oct. 5, 2021), the majority found that an FCE is “commonly ordered by a
treating doctor [and] can serve several useful functions” including providing a “physician with a
basis for informed recommendations regarding work and activity limits . . . and more accurately
diagnosing the nature of an appropriate treatment for the residual injury.” The Commission
disagreed with employer’s argument that the FCE had no diagnostic use in Mack’s case,
reasoning that the test could inform Dr. Beach of the risks of the “further deterioration or
aggravation of [her] condition.” Further, the Commission found that even if the FCE was not
diagnostic, it would still “hold the [employer] responsible for an FCE for the sole purpose of an
impairment rating [because] it serves the interests of all parties, including [employer].” Because
an employer can withhold benefits from a claimant who refuses an FCE designed to determine
“injury-related physical restrictions,” the Commission declined to impose an “inequitable”
double standard by holding that an FCE was not compensable when used to ascertain “the
amount of compensation due for [a] permanent injury.”2 Employer timely appeals the
Commission’s ruling.
ANALYSIS
On appeal, employer argues that, before 2021, the longstanding standard in Virginia was
“that an FCE rendered solely for the purpose of providing an impairment rating was not
‘necessary medical treatment’” under Code § 65.2-603(A)(1). That standard, according to
employer, was well-founded, as it is not the employer’s responsibility to reimburse an employee
2 The dissenting commissioner agreed with employer that an FCE for the sole purpose of obtaining an impairment rating is not “necessary medical attention.” In his view, the full Commission had “abandon[ed] longstanding, logical case precedent” when deciding Elliott, which took “a too expansive view of the benefits afforded under [the Act].” -3- for a permanency rating evaluation if the purpose “is not related to treatment but to support the
claimant’s claim for additional benefits under the Act.” Acknowledging that the Act does not
define “necessary medical attention,” employer urges this Court to limit the phrase to treatment
that “advances the claimant’s [medical] recovery.” Employer argues that, in its view, this
definition excludes Mack’s FCE, which employer argues is more accurately characterized as a
cost of litigating her compensation claim.
“We have an ‘obligation to decide cases on the best and narrowest grounds available.’”
Theologis v. Weiler, 76 Va. App. 596, 603 (2023) (quoting Esposito v. Va. State Police, 74
Va. App. 130, 134 (2022)). “The ‘best’ answer to a legal question is the one with which the least
number of jurists would disagree . . . .” Butcher v. Commonwealth, 298 Va. 392, 396 (2020).
“The ‘narrowest’ answer to a legal question is the one affecting the least number of cases.” Id.
Here, the record demonstrates that Mack’s FCE was a necessary diagnostic and therapeutic test
that Dr. Beach ordered to evaluate and treat lingering issues related to Mack’s compensable knee
injuries. Thus, this Court affirms the Commission’s judgment that the FCE was compensable
without addressing the broader legal question of whether an FCE will always be “necessary
medical attention” under Code § 65.2-603(A)(1).
“As long as necessary after an accident, the employer shall furnish or cause to be
furnished, free of charge to the injured employee . . . necessary medical attention.” Code
§ 65.2-603(A)(1). “Whether disputed medical treatment is compensable as ‘other necessary
medical attention’ within the definition of Code § 65.2-603 presents a mixed question of law and
fact, which this Court reviews de novo.” Cumberland Hosp. v. Ross, 70 Va. App.
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Chief Judge Decker, Judge Chaney and Senior Judge Humphreys Argued at Richmond, Virginia
HENRICO COUNTY PUBLIC SCHOOLS, ET AL. MEMORANDUM OPINION* BY v. Record No. 0635-24-2 JUDGE VERNIDA R. CHANEY MARCH 18, 2025 TONYA MACK
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Brian J. McNamara (Scott C. Ford; Peter J. Leyh; Ford Richardson, P.C., on briefs), for appellants.
Corey R. Pollard (Jenkins, Block, & Associates P.C., on brief) for appellee.
Henrico County Public Schools (employer) challenges the Workers’ Compensation
Commission’s finding that Tonya Mack’s functional capacity evaluation (FCE) was “necessary
medical attention” under Code § 65.2-603(A)(1). Employer reasons that Mack’s FCE was not
“necessary medical attention” because it was “for the sole purpose of obtaining a permanency
rating” to establish her entitlement to benefits under the Act. In employer’s view, requiring it to
pay for such an FCE improperly shifts claimants’ litigation expenses onto employers. The
record, however, demonstrates that Mack’s FCE was not obtained for the sole purpose of
obtaining a permanency rating. Rather, it was a diagnostic medical test that her treating
physician ordered while treating lingering issues related to Mack’s compensable injury. Thus,
this Court affirms the Commission’s judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
Mack suffered a compensable injury by accident to her right knee, left wrist, and a finger
on her left hand while working for employer and filed a claim seeking benefits. The deputy
commissioner awarded Mack temporary total disability benefits and a lifetime medical award
under Code § 65.2-603(A).
Through 2021, Dr. William Beach treated Mack’s compensable injuries; he performed
surgery on her right knee, evaluated her at six follow-up appointments, and ordered a course of
formal physical therapy and a home exercise program. In November 2021, Dr. Beach concluded
that Mack had reached maximum medical improvement and instructed Mack to follow-up as
needed. In May 2023, Mack sought authorization for a follow-up appointment with Dr. Beach
because she was experiencing intermittent pain and swelling in her right knee. Employer
authorized the appointment. During the appointment, Dr. Beach and Mack discussed her
“ongoing right knee pain” that “[u]nfortunately” persisted despite the prior surgery and
treatment. Dr. Beach created an “assessment and plan developed based on review of pertinent
history, physical exam, labs, studies, and medications.” The plan included rest, avoiding certain
activities, physical therapy, and strengthening and stretching exercises. Dr. Beach also ordered
an FCE and instructed Mack to return after her FCE “for reevaluation and further discussion.”
Mack then sought authorization and payment for the FCE. Employer denied her claim,
stating that the “initial bill . . . [was] paid.” Employer reasoned that the FCE was not diagnostic
in nature and that the sole purpose for the FCE was to support Mack’s claim for benefits. After a
hearing, the deputy commissioner ordered employer to “pay for authorization of the [FCE].”
1 On appeal from the Commission, we consider the evidence and all reasonable inferences in the light most favorable to the prevailing party below, here the employee, Mack. Jalloh v. Rodgers, 77 Va. App. 195, 200 n.2 (2023) (quoting City of Charlottesville v. Sclafani, 70 Va. App. 613, 616 (2019)). -2- On review before the full Workers’ Compensation Commission, a split Commission
affirmed the deputy commissioner’s judgment. Citing Elliott v. Sam Green Vault Corp., JCN
VA00001108316 (Oct. 5, 2021), the majority found that an FCE is “commonly ordered by a
treating doctor [and] can serve several useful functions” including providing a “physician with a
basis for informed recommendations regarding work and activity limits . . . and more accurately
diagnosing the nature of an appropriate treatment for the residual injury.” The Commission
disagreed with employer’s argument that the FCE had no diagnostic use in Mack’s case,
reasoning that the test could inform Dr. Beach of the risks of the “further deterioration or
aggravation of [her] condition.” Further, the Commission found that even if the FCE was not
diagnostic, it would still “hold the [employer] responsible for an FCE for the sole purpose of an
impairment rating [because] it serves the interests of all parties, including [employer].” Because
an employer can withhold benefits from a claimant who refuses an FCE designed to determine
“injury-related physical restrictions,” the Commission declined to impose an “inequitable”
double standard by holding that an FCE was not compensable when used to ascertain “the
amount of compensation due for [a] permanent injury.”2 Employer timely appeals the
Commission’s ruling.
ANALYSIS
On appeal, employer argues that, before 2021, the longstanding standard in Virginia was
“that an FCE rendered solely for the purpose of providing an impairment rating was not
‘necessary medical treatment’” under Code § 65.2-603(A)(1). That standard, according to
employer, was well-founded, as it is not the employer’s responsibility to reimburse an employee
2 The dissenting commissioner agreed with employer that an FCE for the sole purpose of obtaining an impairment rating is not “necessary medical attention.” In his view, the full Commission had “abandon[ed] longstanding, logical case precedent” when deciding Elliott, which took “a too expansive view of the benefits afforded under [the Act].” -3- for a permanency rating evaluation if the purpose “is not related to treatment but to support the
claimant’s claim for additional benefits under the Act.” Acknowledging that the Act does not
define “necessary medical attention,” employer urges this Court to limit the phrase to treatment
that “advances the claimant’s [medical] recovery.” Employer argues that, in its view, this
definition excludes Mack’s FCE, which employer argues is more accurately characterized as a
cost of litigating her compensation claim.
“We have an ‘obligation to decide cases on the best and narrowest grounds available.’”
Theologis v. Weiler, 76 Va. App. 596, 603 (2023) (quoting Esposito v. Va. State Police, 74
Va. App. 130, 134 (2022)). “The ‘best’ answer to a legal question is the one with which the least
number of jurists would disagree . . . .” Butcher v. Commonwealth, 298 Va. 392, 396 (2020).
“The ‘narrowest’ answer to a legal question is the one affecting the least number of cases.” Id.
Here, the record demonstrates that Mack’s FCE was a necessary diagnostic and therapeutic test
that Dr. Beach ordered to evaluate and treat lingering issues related to Mack’s compensable knee
injuries. Thus, this Court affirms the Commission’s judgment that the FCE was compensable
without addressing the broader legal question of whether an FCE will always be “necessary
medical attention” under Code § 65.2-603(A)(1).
“As long as necessary after an accident, the employer shall furnish or cause to be
furnished, free of charge to the injured employee . . . necessary medical attention.” Code
§ 65.2-603(A)(1). “Whether disputed medical treatment is compensable as ‘other necessary
medical attention’ within the definition of Code § 65.2-603 presents a mixed question of law and
fact, which this Court reviews de novo.” Cumberland Hosp. v. Ross, 70 Va. App. 761, 766
(2019) (quoting Haftsavar v. All Am. Carpet & Rugs, Inc., 59 Va. App. 593, 599 (2012)). “As
with all such mixed questions, we review the factual findings underpinning the Commission’s
legal conclusions with great deference.” Yahner v. Fire-X Corp., 70 Va. App. 265, 274 (2019).
-4- The Commission’s factual findings will be binding if they are supported by credible evidence.
Loudoun Cnty. v. Richardson, 70 Va. App. 169, 175 (2019).
Code § 65.2-603 “should be construed liberally in favor of a claimant, in harmony with
the Act’s humane purpose.” Herbert Clements & Sons, Inc. v. Harris, 52 Va. App. 447, 457
(2008) (quoting Papco Oil Co. v. Farr, 26 Va. App. 66, 74 (1997)). Consistent with that
remedial purpose, “The [C]ommission has consistently interpreted ‘necessary medical attention’
to include reasonable and necessary diagnostic procedures, even though ultimate causation of the
condition has not been firmly established and even if the procedures reveal that the condition is
not in fact related to the compensable injury.” Id. Indeed, “medical management of the claimant
is to be directed by the treating physician, not by an employer’s representative,” Jensen Press v.
Ale, 1 Va. App. 153, 158 (1985), and that management may include the use of diagnostic tests
necessary to evaluate and treat a claimant’s injuries.
Generally, an employer will be liable for a diagnostic procedure ordered “to determine
(1) whether the claimant’s condition is causally related to his compensable injury; (2) the extent
of the injury resulting from an industrial accident; and (3) whether the claimant requires
additional medical treatment for the injury.” Herbert, 52 Va. App. at 457. “An employer’s
responsibility for a diagnostic procedure is contingent upon a showing that the procedure is
reasonable and necessary, the approved treating physician has authorized the procedure, and the
medical records indicate a possible causal connection between the claimant’s condition and
compensable injury.” Id. (footnote omitted). “It is the claimant’s burden to prove that a possible
causal relationship exists and that the treating physician has authorized the diagnostic procedure
for which the claimant seeks payment by the employer.” Id. at 457-58. “The ‘reasonable and
necessary’ element is proven by a showing that the diagnostic procedure was recommended by
the claimant’s approved treating physician.” Id. at 458.
-5- As employer admits on brief, an FCE is often a critical diagnostic test that can be used
“to prevent aggravation or deterioration of a compensable work injury” or “allow[] for maximum
healing.” Indeed, employer aptly notes that when so used, an FCE is “a necessary diagnostic
test.” The Commission found that such is the case here. Mack returned to Dr. Beach to address
“ongoing” knee issues that “[u]nfortunately” persisted despite the prior surgery and treatment.
As shown by the medical records, Dr. Beach created an “assessment and plan developed based
on review of pertinent history, physical exam, labs, studies, and medications.” The plan included
rest, avoiding certain activities, physical therapy, and strengthening and stretching exercises.
Moreover, although Dr. Beach continued Mack on her “current work status,” he also ordered an
FCE and instructed Mack to return afterward “for reevaluation and further discussion.
Dr. Beach’s notes and treatment plan belie employer’s insistence that the FCE provided
no “medical benefit” to Mack. Rather, Dr. Beach ordered the test to accurately diagnose the
extent of Mack’s ongoing issues, to allow for maximum healing, and determine whether her
work restrictions should be amended to prevent aggravation or deterioration of the compensable
injury. Indeed, Dr. Beach explicitly ordered Mack to return for a follow-up appointment
following the test, where her knee would be further evaluated and the treatment plan further
developed. Thus the record amply supports the Commission’s finding that “[n]ecessary to the
establishment of physical restrictions is comprehension of how an injury translates into a
permanent loss of function.” The record demonstrates that Dr. Beach, at least in part, used the
diagnostic test for Mack’s treatment and that the test was reasonable and necessary. See Herbert,
52 Va. App. at 457.
CONCLUSION
For the above reasons, this Court affirms the Commission’s judgment.
Affirmed. -6-