COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis Argued at Richmond, Virginia
LOUDOUN COUNTY SCHOOL BOARD MEMORANDUM OPINION * BY v. Record No. 3106-02-2 JUDGE D. ARTHUR KELSEY JUNE 17, 2003 LYNN POSTEN KOSTECKA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael L. Zimmerman (Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellant.
Dena Rosenkrantz, Staff Attorney (Virginia Education Association, on brief), for appellee.
The Loudoun County School Board appeals a decision from the
Workers' Compensation Commission, claiming the commission erred
by finding that the school board must pay for a school bus
driver's medical treatment and surgery performed by an
unauthorized physician. Because this case fits within a narrow
exception to the general rule that employers need not pay for
unauthorized medical care, we affirm.
I.
On appeal, "we view the evidence in the light most
favorable to the prevailing party" before the commission.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d
538, 539 (2003); Tomes v. James City (County Of) Fire, 39
Va. App. 424, 429, 573 S.E.2d 312, 315 (2002).
After completing her bus route on January 25, 1996, Lynn P.
Kostecka, a bus driver for the Loudoun County Schools, slipped
and fell in the school's snow-covered parking lot. Kostecka
immediately went to the emergency room of a local hospital where
doctors treated her for head trauma, neck strain, and muscular
strain. The injuries forced her to remain out of work,
entitling her to receive both temporary total and temporary
partial disability payments. In 1999, the commission awarded
Kostecka medical benefits "for as long as necessary."
Kostecka visited a number of doctors for treatment of her
injuries. She often complained of back pain and, despite seeing
at least nine different doctors over a five-year period, her
pain never subsided. On October 9, 2001, Kostecka suffered "leg
pains and back pains" so severe that "she couldn't walk." She
called her treating physician, Dr. James T. Gable, who was "gone
for the afternoon" and his nurse "couldn't reach him." Kostecka
explained her condition to Gable's nurse, who agreed that
Kostecka should go to the emergency room. Kostecka went to a
local hospital where the attending physician discharged her
after examining her and giving her a shot for pain.
The next day, October 10, Kostecka returned to the
emergency room after the pain had worsened from the day before.
- 2 - There, the attending physician examined her and referred her to
Dr. Thomas Schuler, an orthopedic surgeon. Schuler performed a
closed MRI two days later, which offered new insight into the
cause and extent of Kostecka's injury. Kostecka's previous
doctors, Dr. Schuler testified, had relied on an open MRI scan
of "very poor quality" which "led to her under treatment and
missed diagnosis." Based on the results of the new MRI,
Dr. Schuler concluded Kostecka's symptoms were directly related
to her 1996 accident. Believing the situation required
immediate surgical treatment, Dr. Schuler operated on Kostecka
on October 17. Since the surgery, Dr. Schuler stated, Kostecka
has "experienced marked improvement and better function."
The school board refused to pay Dr. Schuler's bill on the
ground that his treatment was unauthorized. A deputy
commissioner held that, while unauthorized, "the surgery and
resultant treatment is causally related to the January 25, 1996
injury and that the claimant has established good cause for
seeking the unauthorized treatment." On review, the commission
upheld the deputy's decision. The commission found that
Dr. Schuler's treatment met the "emergency" and "other good
reasons" exceptions of Code § 65.2-603(C) to the general rule
relieving employers from liability for unauthorized medical
treatment.
- 3 - II.
After an employee suffers a compensable injury, the
employee must select a physician from the employer's authorized
list of physicians. See Code § 65.2-603(A)(1); H.J. Holz & Son,
Inc. v. Dumas-Thayer, 37 Va. App. 645, 653, 561 S.E.2d 6, 10
(2002). The employee "risks not being reimbursed," id. at 654,
561 S.E.2d at 10, for receiving treatment from any other source
"unless referred by said physician, confronted with an
emergency, or given permission by the employer and or its
insurer or this Commission," Shenandoah Prods. Inc. v. Whitlock,
15 Va. App. 207, 210-11, 421 S.E.2d 483, 485 (1992) (quoting
Breckenridge v. Marval Poultry Co., 228 Va. 191, 194, 319 S.E.2d
769, 770-71 (1984)); see also Georgia Pac. Corp. v. Dancy, 17
Va. App. 128, 134-35, 435 S.E.2d 898, 902 (1993).
Under a "rare exception" to this general rule, an employer
must reimburse unauthorized treatment sought "in an emergency"
during the relevant treatment period. Code § 65.2-603(C); H.J.
Holz & Son, Inc., 37 Va. App. at 653-54, 561 S.E.2d at 10. An
emergency arises when the employee reasonably believes "that his
physical situation was such that he required emergency treatment
to relieve his pain, whether real or imagined." Payne v. Master
Roofing & Siding, Inc., 1 Va. App. 413, 415, 339 S.E.2d 559, 560
(1986). As long as the employee's "subjective symptoms were
- 4 - related to the accidental injury," any treatment rendered in an
emergency situation is compensable. Id.
In this case, the commission found that the emergency care
exception justified Kostecka's hospital visits on October 9 and
10, 2001. On October 9, Kostecka, suffering such "severe leg
pains and back pain" that she "couldn't walk," telephoned
Dr. Gable, her treating physician. Because Dr. Gable was
unavailable, a nurse at his office referred Kostecka to the
emergency room at a local hospital. Kostecka returned to the
same emergency room the next day when her pain worsened. Faced
with these facts, the commission did not err in finding that
Kostecka's medical treatment on October 9 and 10 fell within the
emergency exception of Code § 65.2-603(C).
Following the emergency room treatment, Kostecka continued
to see Dr. Schuler, culminating in the October 17 surgery.
Though recognizing that a claimant, following emergency
treatment, "is not authorized to continue treatment, outside
that of her treating physician," the commission found that
Kostecka's evolving situation triggered the "other good reasons"
exception of Code § 65.2-603(C). This exception requires proof
that (i) the employee "acted in good faith," (ii) the treatment
provided by the employer was "inadequate," and (iii) "the
alternative treatment was medically reasonable and necessary."
H.J. Holz & Sons, Inc., 37 Va. App. at 654, 561 S.E.2d at 10;
Whitlock, 15 Va. App. at 212, 421 S.E.2d at 486.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis Argued at Richmond, Virginia
LOUDOUN COUNTY SCHOOL BOARD MEMORANDUM OPINION * BY v. Record No. 3106-02-2 JUDGE D. ARTHUR KELSEY JUNE 17, 2003 LYNN POSTEN KOSTECKA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael L. Zimmerman (Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellant.
Dena Rosenkrantz, Staff Attorney (Virginia Education Association, on brief), for appellee.
The Loudoun County School Board appeals a decision from the
Workers' Compensation Commission, claiming the commission erred
by finding that the school board must pay for a school bus
driver's medical treatment and surgery performed by an
unauthorized physician. Because this case fits within a narrow
exception to the general rule that employers need not pay for
unauthorized medical care, we affirm.
I.
On appeal, "we view the evidence in the light most
favorable to the prevailing party" before the commission.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d
538, 539 (2003); Tomes v. James City (County Of) Fire, 39
Va. App. 424, 429, 573 S.E.2d 312, 315 (2002).
After completing her bus route on January 25, 1996, Lynn P.
Kostecka, a bus driver for the Loudoun County Schools, slipped
and fell in the school's snow-covered parking lot. Kostecka
immediately went to the emergency room of a local hospital where
doctors treated her for head trauma, neck strain, and muscular
strain. The injuries forced her to remain out of work,
entitling her to receive both temporary total and temporary
partial disability payments. In 1999, the commission awarded
Kostecka medical benefits "for as long as necessary."
Kostecka visited a number of doctors for treatment of her
injuries. She often complained of back pain and, despite seeing
at least nine different doctors over a five-year period, her
pain never subsided. On October 9, 2001, Kostecka suffered "leg
pains and back pains" so severe that "she couldn't walk." She
called her treating physician, Dr. James T. Gable, who was "gone
for the afternoon" and his nurse "couldn't reach him." Kostecka
explained her condition to Gable's nurse, who agreed that
Kostecka should go to the emergency room. Kostecka went to a
local hospital where the attending physician discharged her
after examining her and giving her a shot for pain.
The next day, October 10, Kostecka returned to the
emergency room after the pain had worsened from the day before.
- 2 - There, the attending physician examined her and referred her to
Dr. Thomas Schuler, an orthopedic surgeon. Schuler performed a
closed MRI two days later, which offered new insight into the
cause and extent of Kostecka's injury. Kostecka's previous
doctors, Dr. Schuler testified, had relied on an open MRI scan
of "very poor quality" which "led to her under treatment and
missed diagnosis." Based on the results of the new MRI,
Dr. Schuler concluded Kostecka's symptoms were directly related
to her 1996 accident. Believing the situation required
immediate surgical treatment, Dr. Schuler operated on Kostecka
on October 17. Since the surgery, Dr. Schuler stated, Kostecka
has "experienced marked improvement and better function."
The school board refused to pay Dr. Schuler's bill on the
ground that his treatment was unauthorized. A deputy
commissioner held that, while unauthorized, "the surgery and
resultant treatment is causally related to the January 25, 1996
injury and that the claimant has established good cause for
seeking the unauthorized treatment." On review, the commission
upheld the deputy's decision. The commission found that
Dr. Schuler's treatment met the "emergency" and "other good
reasons" exceptions of Code § 65.2-603(C) to the general rule
relieving employers from liability for unauthorized medical
treatment.
- 3 - II.
After an employee suffers a compensable injury, the
employee must select a physician from the employer's authorized
list of physicians. See Code § 65.2-603(A)(1); H.J. Holz & Son,
Inc. v. Dumas-Thayer, 37 Va. App. 645, 653, 561 S.E.2d 6, 10
(2002). The employee "risks not being reimbursed," id. at 654,
561 S.E.2d at 10, for receiving treatment from any other source
"unless referred by said physician, confronted with an
emergency, or given permission by the employer and or its
insurer or this Commission," Shenandoah Prods. Inc. v. Whitlock,
15 Va. App. 207, 210-11, 421 S.E.2d 483, 485 (1992) (quoting
Breckenridge v. Marval Poultry Co., 228 Va. 191, 194, 319 S.E.2d
769, 770-71 (1984)); see also Georgia Pac. Corp. v. Dancy, 17
Va. App. 128, 134-35, 435 S.E.2d 898, 902 (1993).
Under a "rare exception" to this general rule, an employer
must reimburse unauthorized treatment sought "in an emergency"
during the relevant treatment period. Code § 65.2-603(C); H.J.
Holz & Son, Inc., 37 Va. App. at 653-54, 561 S.E.2d at 10. An
emergency arises when the employee reasonably believes "that his
physical situation was such that he required emergency treatment
to relieve his pain, whether real or imagined." Payne v. Master
Roofing & Siding, Inc., 1 Va. App. 413, 415, 339 S.E.2d 559, 560
(1986). As long as the employee's "subjective symptoms were
- 4 - related to the accidental injury," any treatment rendered in an
emergency situation is compensable. Id.
In this case, the commission found that the emergency care
exception justified Kostecka's hospital visits on October 9 and
10, 2001. On October 9, Kostecka, suffering such "severe leg
pains and back pain" that she "couldn't walk," telephoned
Dr. Gable, her treating physician. Because Dr. Gable was
unavailable, a nurse at his office referred Kostecka to the
emergency room at a local hospital. Kostecka returned to the
same emergency room the next day when her pain worsened. Faced
with these facts, the commission did not err in finding that
Kostecka's medical treatment on October 9 and 10 fell within the
emergency exception of Code § 65.2-603(C).
Following the emergency room treatment, Kostecka continued
to see Dr. Schuler, culminating in the October 17 surgery.
Though recognizing that a claimant, following emergency
treatment, "is not authorized to continue treatment, outside
that of her treating physician," the commission found that
Kostecka's evolving situation triggered the "other good reasons"
exception of Code § 65.2-603(C). This exception requires proof
that (i) the employee "acted in good faith," (ii) the treatment
provided by the employer was "inadequate," and (iii) "the
alternative treatment was medically reasonable and necessary."
H.J. Holz & Sons, Inc., 37 Va. App. at 654, 561 S.E.2d at 10;
Whitlock, 15 Va. App. at 212, 421 S.E.2d at 486.
- 5 - The commission's factual findings on the good faith issue
are "conclusive and binding on this Court if supported by
credible evidence." Blue Ridge Mkt. of Va. v. Patton, 39
Va. App. 592, 600, 575 S.E.2d 574, 578 (2003). The adequacy of
the prior medical treatment, along with the reasonableness and
necessity of the unauthorized treatment, present mixed questions
of law and fact. H.J. Holz & Sons, Inc., 37 Va. App. at 655,
561 S.E.2d at 11.
On the first issue, we find that credible evidence supports
the commission's finding that Kostecka acted in good faith in
seeking treatment from Dr. Schuler. His medical care began when
Kostecka visited the emergency room. Dr. Schuler promptly
ordered a closed MRI scan, which led him to advise Kostecka that
her prior physicians had misdiagnosed the severity of her
condition and the need for surgery. The commission also found
credible Kostecka's testimony about experiencing acute,
unrelenting pain during this period of time. Together, these
facts provide a fair basis for the commission's finding of good
faith.
On the second issue, we agree with the commission's finding
that Kostecka's "previous treatment was inadequate" and that a
"misunderstanding about her condition led to her lack of
improvement." Before Kostecka met with Dr. Schuler, at least nine
other doctors had examined her. Despite her continuing problems,
none of these physicians "was currently providing a treatment plan
- 6 - to address the claimant's ongoing condition." Noting that
Kostecka's previous doctors had relied upon an open MRI scan of
"very poor quality," Dr. Schuler performed a closed scan, which
revealed in greater detail the extent of her injuries and the
likely reason why she had "not been diagnosed and treated
properly."
The school board points out that Kostecka refused in 1997 to
submit to a closed MRI recommended by Dr. Ian Wattenmaker. From
that point forward, the school board reasons, the physicians
treating Kostecka were justified in not continuing to recommend
this procedure. We disagree. Kostecka submitted to two open MRIs
in 1998. These scans, Dr. Schuler opined, were of "very poor
quality" and failed to "show the true detailed anatomy of her
lumbar spine." Nothing in the medical records between 1998 and
2001 suggests that any physician advised Kostecka of the
diagnostic inadequacies of these open MRIs. Nor does it appear
that any physician, until Dr. Schuler, realized the need to
address again with Kostecka the issue of obtaining a closed MRI
given the limited value of her 1998 open MRI scans and her
continuing, chronic symptoms of lower back pain. These facts
justify the commission's finding that Kostecka's prior treatment
was inadequate for purposes of applying the "other good reasons"
standard of Code § 65.2-603(C).
Finally, we agree with the commission that Dr. Schuler's
treatment satisfies the requirement that it be medically
- 7 - reasonable and necessary. Necessary treatment includes any
treatment from which an employee "realizes appreciable benefit and
relief from said change." H.J. Holz & Sons, Inc., 37 Va. App. at
656, 561 S.E.2d at 12 (citation omitted). Prior to the surgery,
Kostecka found it difficult even to walk. After the surgery,
Kostecka "markedly improved her symptoms in the short period" and
was "functioning much better." The school board presented no
evidence challenging the necessity for, or medical efficacy of,
Kostecka's surgery.
III.
We affirm the commission, finding no error in its application
of the legal standards required by the "emergency" and "other good
reasons" exceptions of Code § 65.2-603(C) or in its findings of
fact underlying the application of these standards. 1
Affirmed.
1 In its brief on appeal, the school board also argues that Kostecka's temporary total disability benefits should have been suspended while she prepared for, and recuperated from, voluntary eye surgery unrelated to her compensable injury. As the school board conceded at oral argument, however, this issue was not addressed in the school board's request for full commission review. See 16 Va. Admin. Code § 30-50-40(1), Commission Rule 3.1. Thus, it cannot now be reviewed on appeal to this Court. See Rule 5A:18.
- 8 -