Inn v. King

• Decision Date: 17 May 2011
• Docket Number: Record No. 2186–10–3.
• Citation: 708 S.E.2d 450,58 Va.App. 286
• Court: Virginia Court of Appeals
• Parties: HAMPTON INN and Selective Insurance Company of Americav.Jessica Marie Sisk KING.

58 Va.App. 286

708 S.E.2d 450

HAMPTON INN and Selective Insurance Company of America

v.Jessica Marie Sisk KING.

Record No. 2186–10–3.

Court of Appeals of Virginia,Lexington.

May 17, 2011.

Lisa Reed Petersen (Robert Harrington & Associates, Richmond, on brief), for appellants.(Timothy S. Peck, Geovanni Munoz; The Chandler Law Group, Alexandria, on brief), for appellee. Appellee submitting on brief.

Present: HUMPHREYS, McCLANAHAN and BEALES, JJ.

HUMPHREYS, Judge.

Hampton Inn and Selective Insurance Company of America (“employer”) appeal the opinion of the Virginia Workers' Compensation Commission (“commission”) extending the expiration date set forth in the terms of the compromise settlement agreement for payment of Jessica Marie Sisk King's (“King”) medical benefits five months from the date of its opinion. Employer contends that the commission erred as a matter of law in concluding that the expiration date should be extended beyond the terms set forth in the petition for approval of the compromise settlement and the order approving the compromise settlement. For the following reasons, we agree and reverse.

I. BACKGROUND

“On appeal, we view the evidence in the light most favorable to the prevailing party before the commission.” Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va.App. 264, 269, 590 S.E.2d 631, 634 (2004) (citing Clinchfield Coal Co. v. Reed, 40 Va.App. 69, 72, 577 S.E.2d 538, 539 (2003)). So viewed, the evidence is as follows.

On November 5, 2007, King suffered an injury to her low back when she slipped on a wet floor while working for the employer. On March 12, 2009, the commission entered an order approving the compromise settlement agreement entered into by the parties.¹ The order incorporated the compromise settlement agreement, and specifically recited that the agreement provided the following settlement of the claims:

The [employer] agree[s] to pay to [King] and [King] agrees to accept as complete payment of all claims which [s]he might have against the [employer] arising under the Workers' Compensation Laws of the Commonwealth of Virginia, as a result of the injuries sustained on November 5, 2007, by [King], the sum of THIRTY THOUSAND DOLLARS AND NO CENTS ($30,000.00). Six months of any and all causally related medical expenses will also be paid. Thereafter, medical expenses shall be the sole and exclusive responsibility of the claimant.(Emphasis added).

King then filed a claim with the commission on April 27, 2009, “for a weight loss program to be provided by The Duke Diet and Fitness Center,” (“Duke program”), with Dr. Murray E. Joiner, Jr.'s, her treating physician, endorsement and a description of the program attached. The commission sent an order to the employer on April 30, 2009, noting King's claim and that the employer had twenty days within which to advise whether it was accepting the claim. On May 5, 2009, the carrier responded that “[t]he claim is accepted as compensable but the following issues are unresolved: payment of certain medical expenses[, and] other[:] [d]ue to the fact that IW [presumably “injured worker” although not clarified in the record] had gastric bypass surgery and did not lose—we will agree to her joining weight watchers—attached are location[s]—there are over 100–.”

After receiving the employer's response, the commission sent a notice of an on-the-record hearing to the parties on May 11, 2009; and on May 14, 2009, the commission ordered an evidentiary hearing on the matter pursuant to the employer's request. The evidentiary hearing was held on October 20, 2009.

At the hearing, King testified that she had been overweight and had gastric bypass surgery in October 2006 before the accident at work. She stated that she had weighed 350 pounds before the surgery and that she weighed 201 pounds after the surgery, which weight she maintained for a year. However, she gained 71 pounds after her accident because she was not able to exercise or continue the activity that she had previously done, and she was also put on steroids. Specifically, she testified that she was not able to work out at the YMCA because of the restrictions on bending and stretching, and she was not able to continue her walking activities as much. King also testified that Dr. Joiner and Dr. Bruce M. Stelmack, the employer's independent medical examiner, recommended weight loss to help her back and to see if she needed back surgery. She further testified that she did not know that the employer had offered any type of weight loss program during the six months after the settlement.

On cross-examination, King testified that she had weight problems her whole life and that she also had problems with her knees. In addition, she stated that she had attempted the home-based Weight Watchers program between the ages of seventeen and twenty-one, and did not have much success. King testified that she had a support group after her gastric bypass surgery and she attended a few meetings, but she subsequently stopped going when she realized she had a support group at home consisting of her husband, parents, and in-laws. They helped her by walking with her nightly, and eating healthier foods. In addition, her husband worked out with her at the YMCA. King also admitted on cross-examination that she had taken some medication prior to her work accident that had side effects of weight gain.

King further testified on cross-examination that Dr. Stelmack recommended a weight loss program, but she could not recall if he recommended that it be a local program. She did recall telling Dr. Stelmack that she had a hard time traveling and that she would like to do pool therapy if there was one available locally. She also recalled that on March 11, 2009, Dr. Joiner recommended that she see her primary care physician to see if there were any other medical conditions that were causing her weight gain, and she subsequently went to the Rockbridge free clinic. King also testified that during her April 8, 2009 visit with Dr. Joiner, she inquired if he had received any information or knew anything regarding the Duke program, which was approximately four hours from her home. She admitted that she knew the Duke program was a four-week program that would require her to stay there during the program and that housing was not provided. King also admitted that she had not applied to the Duke program but she was also interested in a local weight loss program.

The relevant medical records before the commission provide that on April 14, 2008, Lisa M. Rapasky, Dr. Joiner's physician's assistant, evaluated King with Dr. Joiner's knowledge, and indicated that King had gained fifteen pounds since November. King was concerned at that time because she was post gastric bypass surgery, and “doesn't want to gain the weight back.” On September 3, 2008, Ms. Rapasky evaluated King again, and recommended, pursuant to Dr. Joiner's specific recommendations, a “[w]eight loss program including supplements/meals with goal weight of 195.” Dr. Joiner's September 8, 2008 progress notes indicate that King was given restrictions, and was to begin a weight loss program and pool therapy.

On January 15, 2009, Dr. Stelmack performed an independent medical examination of King, and confirmed that a weight loss program was needed. King informed Dr. Stelmack that “she very much would like to stay in a weight loss program, but does not want to go to pool therapy because there is no therapy local to her home and therefore driving would exacerbate her pain.” Dr. Stelmack noted that since the accident, King's weight had increased from 201 pounds to 272 pounds, and diagnosed her with chronic morbid obesity that had “worsened in the last year related to relative immobility.” Dr. Stelmack gave the following relevant recommendations:

1. I agree with a weight loss program structured and local to her residence; however, I do not believe pool therapy is appropriate in view of the need to travel and her relatively excellent mobility and weight bearing status. She could participate in a strengthening exercise program to build muscles and burn calories without pool therapy as she clearly has excellent balance and mobility despite her complaints of chronic pain.

2. Surgical evaluation by a certified spine surgeon is appropriate to consider fusion and/or other interventions of her painful herniated disk as well as facet syndrome, which appears to be her primary complaint (pain upon extension) also demonstrated by physical therapy evaluation at Blue Ridge Physical Therapy on 2/26/08. I believe it is unlikely a spine surgeon would be willing to operate on her until she looses [sic] approximately 100 pounds, at which time her condition could be re-evaluated. I, therefore, do not feel she is at maximum medical improvement until she has participated in a weight loss program for at least three to six months and strengthening exercise program with combined efforts of diet and exercise as well as counseling in that regard.

In his January 26, 2009 clarification to his January 25, 2009 addendum to the independent medical examination, Dr. Stelmack specifically noted that he did not believe he could give a projection of King's “functional limits if and when [she] reaches MMI (Maximal Medical Improvement)” until an “improvement is demonstrated and weight loss has occurred.”

On March 4, 2009, King's former attorney wrote Dr. Joiner requesting input on a weight loss program, and included information on the Duke program. He specifically asked, “[i]f you believe this program is appropriate, I ask that you please write a referral. If you do not believe this program is appropriate, please refer her to one which you find suitable.”

Ms. Repasky evaluated King on March 11, 2009, and King informed Ms. Repasky that she never received authorization for an independent exercise program. King also informed Ms. Repasky that she had gained fifty pounds since starting Lyrica, but...