Vital Link, Inc. v. Hope, Record No. 1975-17-2

Docket NºRecord No. 1975-17-2
Citation69 Va.App. 43, 814 S.E.2d 537
Case DateJune 19, 2018
CourtCourt of Appeals of Virginia

69 Va.App. 43
814 S.E.2d 537

VITAL LINK, INC. and Argonaut Insurance Company
Denzil B. HOPE

Record No. 1975-17-2

Court of Appeals of Virginia, Richmond.

JUNE 19, 2018

Andrew H. D. Wilson (Two Rivers Law Group, P.C., on brief), for appellants.

Brooke T. Alexander, Richmond (Bradford E. Goodwin; Reid Goodwin PLC, on brief), for appellee.

Present: Judges Humphreys, Alston and Decker


69 Va.App. 50

Vital Link, Inc. ("employer"), argues on appeal that the Workers’ Compensation Commission (the "Commission") erred when it considered a claim of compensable consequence by claimant Denzil B. Hope ("Hope"). Employer argues that the Commission erred in finding that employer had sufficient notice to defend the claim of compensable consequence, erred in finding Hope’s subsequent injury to be a compensable consequence, and erred in awarding medical benefits for the compensable consequence injury. Employer also argues that the Commission erred in finding sufficient evidence to award Hope continuing wage loss benefits.


It is uncontested that Hope sustained a compensable work-related injury to his left knee on June 23, 2015. Beginning on August 18, 2015, Dr. Mark E. Buchanan ("Dr. Buchanan") began treating Hope for the injury. Dr. Buchanan diagnosed Hope with a displaced acute medial meniscus tear of the left knee and chrondromalacia of the left knee, which required surgery.

On September 18, 2015, Dr. Buchanan performed an arthroscopic surgery on Hope’s left knee. The procedure included performing a "chondroplasty of the medial femoral condyle til [sic] a smooth well contoured probe stable surface was created." The operative report indicated that the surgery was successful, with no complications. On September 23, 2015, Hope began physical therapy to regain strength and function.

In his post-operative visits and during physical therapy, Hope experienced swelling of his left knee and reported significant pain and discomfort. One post-operative report noted that Hope "has constant pain that gets worse with activity" and that Hope "[g]ets sharp shooting pains as well." After a kenalog and lidocaine injection into Hope’s left knee did not ease his pain, Dr. Buchanan scheduled an MRI for December 15, 2015.

69 Va.App. 51

On December 29, 2015, Dr. Buchanan reviewed the MRI of Hope’s left knee. According to Dr. Buchanan’s office note, the MRI showed a "subchondral fracture" of Hope’s "medial femoral condyle." Dr. Buchanan also described "full-thickness loss" of cartilage within the joint. Discussing the injury further, Dr. Buchanan noted that "[t]he fracture has the appearance of a stress fracture" that "was not present on his previous MRI so is [sic] not directly related to his work injury but may be due to stresses on his knee during his postop healing."

814 S.E.2d 541

In January 2016, Dr. Buchanan released Hope to all activities even though Hope continued to experience pain and swelling in his left knee. In a letter dated January 13, 2016, employer’s claim administrator informed Hope that his benefits were terminated and that she would "deny any medical bills related to the fracture of the right knee1 as this is not compensable under the Workers’ compensation claim." Hope was scheduled for a follow-up appointment with Dr. Buchanan on January 29, 2016, but Hope cancelled on January 28, 2016.

Hope returned to work with a different employer in late March 2016. After doing so, however, Hope’s left knee "began to swell" and he experienced significant pain. On May 11, 2016, Hope visited his family physician, Dr. Ghayth M. Hammad ("Dr. Hammad"). Hope did not return to see Dr. Buchanan because it was Hope’s understanding that Dr. Buchanan was unavailable. Dr. Hammad removed fluid from Hope’s left knee, but Hope’s symptoms did not abate. Dr. Hammad subsequently arranged for Hope to receive treatment from Dr. Sameer G. Badarudeen ("Dr. Badarudeen"), an orthopedic surgeon.

Hope obtained permission from employer’s claim administrator to receive a new MRI from Dr. Badarudeen. While waiting for the new MRI, Dr. Badarudeen removed fluid from Hope’s knee and noted Hope’s constant pain. Also, in an office note dated June 20, 2016, Dr. Badarudeen stated that upon his

69 Va.App. 52

review of Hope’s MRI from December 15, 2015, Hope’s femur fracture was "related to his Worker’s Comp. injury" without any further discussion. On June 27, 2016, Dr. Badarudeen took a new MRI and compared it to the December 15, 2015 MRI. According to Dr. Badarudeen, the new MRI "showed full-thickness cartilage loss and ... tricompartmental disease[.]" Based on the ineffectiveness of previous conservative treatments, Dr. Badarudeen recommended a left total knee replacement.

On July 14, 2016, Hope filed a claim for temporary total disability benefits from May 11, 2016, and continuing. On the line titled "Parts of Your Body Injured," Hope wrote "[i]t was my left knee. Done [sic] had one surgery and waiting on a second one." Hope did not mark the box indicating he sought a lifetime award of medical benefits.

On October 17, 2016, Dr. Badarudeen performed a left total knee replacement on Hope. Prior to the surgery, employer’s claim administrator informed both Hope and Dr. Badarudeen’s office that employer would not pay for Dr. Badarudeen’s treatment of Hope’s left knee.

Prior to the scheduled hearing before the deputy commissioner, Hope moved for a continuance and a de bene esse deposition of his cousin, Ann Howard, who was expected to testify regarding her conversation with employer’s claim administrator about Hope’s medical treatment with Dr. Badarudeen.2 Employer objected, noting to the deputy commissioner that there was "currently only one issue pending before your Honor and that is ... [Hope’s] claim for temporary total disability benefits." According to employer, Ann Howard’s testimony was therefore irrelevant to the issue before the deputy commissioner. Hope countered that a "request for medical benefits is implicit in the filing of an application for

69 Va.App. 53

benefits." Ruling on the issue, the deputy commissioner granted Hope’s motion for a de bene esse deposition after finding it appropriate under the circumstances.

Following the hearing, the deputy commissioner found that employer had sufficient notice that Hope was seeking medical benefits. As a result, the deputy commissioner awarded both wages and medical benefits, including compensation for the left total knee replacement performed by Dr. Badarudeen. On November 7, 2017, the full Commission

814 S.E.2d 542

affirmed the deputy commissioner, finding that "the record demonstrates [that Hope’s] stress fracture was a compensable consequence of his original injury." The Commission also found that because employer’s insurer denied responsibility for that injury "[Hope] was free to select a physician of his choosing." As a result, the Commission found that employer was "responsible for the reasonable, necessary, and casually related medical treatment rendered by Dr. Badarudeen." Finally, the Commission concluded that evidence in the record established Hope’s ongoing disability and that the evidence indicated the need for left total knee replacement surgery. This appeal follows.


A. Standard of Review

"Although we defer to the commission in its role as fact finder, we ‘review questions of law de novo .’ " Nelson Cty. Sch. v. Woodson, 45 Va. App. 674, 677, 613 S.E.2d 480, 482 (2005) (quoting Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc ) ). "While we review questions of law de novo , we construe the Workers’ Compensation Act liberally for the benefit of employees to effectuate its remedial purpose of making injured workers whole." Advance Auto & Indem. Ins. Co. v. Craft, 63 Va. App. 502, 514, 759 S.E.2d 17, 23 (2014) (referencing Fairfax Cty. Sch. Bd. v. Humphrey, 41 Va. App. 147, 154-55, 583 S.E.2d 65, 68 (2003) ).

69 Va.App. 54

B. Compensable Injuries Under the Act

"An injury comes within the scope of the [Workers’ Compensation] Act if it results from an accident arising out of and in the course of the injured employee’s employment." Simms v. Ruby Tuesday, Inc., 281 Va. 114, 120, 704 S.E.2d 359, 362 (2011). "When an employee sustains such an injury, the Act provides the sole and exclusive remedy available against the employer." Id. (quoting Butler v. Southern States Coop., Inc., 270 Va. 459, 465, 620 S.E.2d 768, 772 (2005) ). An employer is required under the Act to furnish all medical services that are "necessary services incident to the treatment of an injury sustained in a compensable accident." Haftsavar v. All Am. Carpet and Rugs, Inc., 59 Va. App. 593, 599, 721 S.E.2d 804, 807 (2012) (quoting Ins. Mgmt. Corp. of Tidewater/Baldwin Bros. & Taylor v. Daniels, 222 Va. 434, 439, 281 S.E.2d 847, 849 (1981) ). Subject to review by the Commission, "the employer is responsible for...

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    ...the principle that the "party seeking workers’ compensation bears the burden of proving his disability." Vital Link, Inc. v. Hope, 69 Va. App. 43, 64, 814 S.E.2d 537, 547 (2018). However, at this juncture, as the appellant in this case, the employer bears the "burden of showing that reversi......
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