Lynchburg Foundry Co. v. Goad

• Decision Date: 16 February 1993
• Docket Number: No. 0614-92-2,0614-92-2
• Citation: 427 S.E.2d 215,15 Va.App. 710
• Parties: LYNCHBURG FOUNDRY COMPANY, et al. v. Garfield GOAD. Record
• Court: Virginia Court of Appeals

Page 215

427 S.E.2d 215

15 Va.App. 710

LYNCHBURG FOUNDRY COMPANY, et al. v. Garfield GOAD.

Record No. 0614-92-2.

Court of Appeals of Virginia.

Feb. 16, 1993.

J. Gorman Rosenberger, Jr. (Wilson, Garbee & Rosenberger, Lynchburg, on briefs), for appellants.

Edmund R. Michie (Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., Charlottesville, on brief), for appellee.

Present: ELDER, FITZPATRICK and MOON, JJ.

ELDER, Judge.

The Lynchburg Foundry Company and its carrier, Argonaut Insurance (hereinafter referred to collectively as the employer), appeal from the commission's award of benefits for home health nursing services. Employer contends that the services were not necessary within the meaning of the Virginia Workers' Compensation Act. Specifically, the employer contends that the full commission erred in finding that the home nursing care authorized by appellee's doctor was "necessary" as required by Code § 65.2-603. It also claims that the commission erred in awarding attorney's fees to appellee. For the reasons that follow, we affirm the decision of the commission on the merits and reverse as to the award of attorney fees against the employer.

On October 31, 1989, in the course of his employment, appellee sustained burns on his right arm. Employer accepted the injury as compensable, and appellee received medical treatment, which included hospitalization. Appellee's treatment, which continued after his discharge from the hospital, required the regular changing of his dressing. After appellee's discharge, his treating physician, Dr. Chavis, ordered that he have his dressing changed on a daily basis by "a qualified nurse ... using aseptic technique." Dr. Chavis made arrangements for these services to be provided by Home Health Plus, a home care nursing service. Accordingly, from November 16, 1989, to January 4, 1990, employees of Home Health Plus home nursing service came to appellee's home to change his dressing, for a total of forty-one visits at a cost of $78 each. During that same period of time, however, appellee also traveled to Dr. Chavis' office for weekly examinations. The uncontradicted evidence showed that appellee's medical condition did not prevent him from leaving his home to have the dressing changed at some other location at a lower cost--his employer's medical facility, or at his doctor's office (at a cost of $20). Employer did not learn of the home visits until after they had ceased. However, employer's human resources manager and plant nurse testified that they knew appellee would need regular medical attention for dressing changes.

The deputy commissioner held that the services were both authorized by the attending physician and necessary to the treatment of appellee's injury. Although home treatment may not have been necessary, changing of the dressing in an aseptic manner was necessary. Accordingly, the deputy commissioner held that appellee was entitled to compensation for that treatment. Also, because the deputy commissioner held that employer defended the matter without reasonable grounds, he granted appellee's request for attorney's fees. On appeal, the commission affirmed the deputy commissioner's decision and adopted his findings of fact and conclusions of law. It also awarded additional attorney fees to appellee for the continued unreasonable defense of the employee's application for compensation.

Upon appellate review, this Court must construe the evidence in the light most favorable to the party prevailing below, Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986), and the findings of fact made by the Workers' Compensation Commission will be upheld when supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va.App. 512, 515, 382 S.E.2d 487, 488 (1989). However, the 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. See, e.g., City of Salem v. Colegrove, 228 Va. 290, 293, 321 S.E.2d 654, 656 (1984) (holding reviewable, as mixed question of law and fact, determination that college education was not "reasonable and necessary vocational rehabilitation training service" under former Code § 65.1-88). Accordingly, the commission's conclusion as to the necessity of home treatment for the changing of appellee's dressing is not binding upon this Court. Id. However, both the purposes of the Workers' Compensation Act and the equities of the situation guide us in affirming the commission's award.

The evidence shows that periodic dressing changes were medically necessary as a result of appellee's compensable injury. In order to effect those changes following appellee's discharge from the hospital, Dr. Chavis, the attending physician, ordered home health care from Home Health Plus. The evidence also shows, however, that appellee's medical condition did not require that the treatment be rendered in his home. Because this treatment was provided in appellee's home, however, the cost of the service was at least three times as much as the cost had the service been performed at the doctor's office or the place of employment. Employer contends that the treatment was not medically necessary as defined in Code § 65.2-603 because it did not need to be done in the home.

The purpose of the Virginia Workers' Compensation Act

is to provide compensation to an employee for the loss of his opportunity to engage in work, when his disability is occasioned by an injury suffered from an accident arising out of and in the course of his employment. The Act should be liberally construed in harmony with its humane purpose.

Barnett v. D.L. Bromwell, Inc., 6 Va.App. 30, 33-34, 366 S.E.2d 271, 272 (1988) (citations omitted). Following a compensable injury,

the employer shall furnish ... 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.... The employee shall accept the attending physician ..., and in addition, such surgical and hospital service and supplies as may be deemed necessary by the attending physician or the Commission.

Code § 65.2-603(A)(1). Employer does not dispute that the periodic changing of appellee's dressing was necessary as a result of the accident. "So long as a causal relationship between the industrial accident and the ... [treatment rendered] is shown, the employer is financially responsible for the medical attention which the attending physician deems necessary, subject to review by the Commission." Jensen Press v. Ale, 1 Va.App. 153, 159, 336 S.E.2d 522, 525 (1985). Although treatment at appellee's home may not have been necessary, changing of the dressing itself was medically necessary, thereby requiring payment by the employer.

The evidence shows that appellant's human resources manager, Raymond Howell, who served as a liaison with the Workers' Compensation...