Christine A. Reid v. Virginia Commonwealth University/Commonwealth of Virginia ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Huff and Senior Judge Coleman
UNPUBLISHED
Argued at Richmond, Virginia
CHRISTINE A. REID
MEMORANDUM OPINION* BY
v. Record No. 0478-13-2 JUDGE GLEN A. HUFF
OCTOBER 22, 2013
VIRGINIA COMMONWEALTH UNIVERSITY/
COMMONWEALTH OF VIRGINIA
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Christine Reid, pro se.
Adam L. Katz, Assistant Attorney General (Kenneth T. Cuccinelli, II,
Attorney General; Wesley G. Russell, Jr., Deputy Attorney General;
Peter R. Messitt, Senior Assistant Attorney General, on brief), for
appellee.
Christine A. Reid (“employee”) appeals the decision of the Virginia Workers’
Compensation Commission (“the commission”) affirming the deputy commissioner’s finding
that employee’s neck and left shoulder injuries were not compensable consequences of her
March 23, 2011 right shoulder injury. On appeal, employee contends that the commission erred
in
1) focusing solely on the doctrine of compensable consequences
after a May 4, 2011 injury exacerbation, ignoring evidence from
[employee’s] testimony;
2) stating that the May 4, 2011 physical therapy session was not
causally related, reasonable, and necessary medical treatment for
her compensable right shoulder injury by accident on March 23,
2011, despite the preponderance of the evidence that physical
therapy was necessary and appropriate for this injury;
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
3) substituting the uncorroborated opinion of one orthopedic
surgeon (Dr. Boardman) about whether . . . the originally
prescribed course of physical therapy should be followed, in place
of the Commission’s own determination of whether . . . an injury
experienced during physical therapy for compensable accident
injury follows the doctrine of compensable consequences; and
4) ignoring that instruction in a home exercise program is an
appropriate conclusion to a physical therapy program, regardless of
whether . . . an orthopedic surgeon says he thinks that no additional
physical therapy is needed.
For the following reasons, this Court affirms the decision of the commission.
I. BACKGROUND
On appeals from the commission, “we review the evidence in the light most favorable to
the prevailing party.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990). If supported by credible evidence, the commission’s factual findings are
“binding on appeal,” Tomes v. James City Fire, 39 Va. App. 424, 430, 573 S.E.2d 312, 315
(2002), “even though there is evidence in the record to support a contrary finding,” Morris v.
Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). When
“determining whether credible evidence exists,” we cannot “retry the facts, reweigh the
preponderance of the evidence, or make [our] own determination of the credibility of the
witnesses.” Wagner Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). In
addition, the commission’s “conclusions upon conflicting inferences, legitimately drawn from
proven facts, are equally binding on appeal.” Watkins v. Halco Eng’g, Inc., 225 Va. 97, 101,
300 S.E.2d 761, 763 (1983). Any medical opinion offered into evidence “is not necessarily
conclusive, but is subject to the commission’s consideration and weighing.” Hungerford Mech.
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). So viewed, the evidence is
as follows.
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On March 23, 2011, employee, a professor in the Department of Rehabilitation
Counseling for the Virginia Commonwealth University (“employer”), was attending a
conference in New Orleans, Louisiana. While at the conference, employee tripped on a broken
sidewalk, fell, and dislocated her right shoulder. Employee was treated at the Ochsner Baptist
Medical Center in New Orleans and was released the same day. The next day, employee noticed
neck and left shoulder pain that she attributed to overuse from having her right arm in a sling
following the accident.
After returning to Richmond, employee began treatment with Dr. Frank J. Tortorella
(“Tortorella”), the head of Employer’s Employee Health Services. Tortorella referred employee
to Dr. Norman D. Boardman, III (“Boardman”), an orthopedic specialist, who prescribed
physical therapy for employee. Beginning on April 8, 2011 and continuing through May 2,
2011, employee attended physical therapy for her injury. On May 3, 2011, employee returned to
Boardman for a visit. Boardman stated the following in his final report from that visit:
OBJECTIVE: On examination her shoulder looks great. Full
motion. 5/5 strength throughout. Fingers pink, warm and sensate,
good capillary refill. No gross motor or sensory deficits.
ASSESSMENT/PLAN: She is doing well. At this point I do not
even think she needs therapy. She will gradually increase activity
as tolerated and follow up on an as needed basis.
Boardman then signed a physical therapy referral form on May 3, 2011 that further provided “no
therapy  This has been D/C’d.”
In contravention of Boardman’s conclusion, employee attended her physical therapy
session the next day because she disagreed with Boardman and her “plan was to get the physical
therapist’s perspective and then talk to . . . Tortorella[,] the [w]orker’s [c]omp physician who is
responsible for coordinating care.” Employee also claimed that she applied her professional
“knowledge to my own case as I decided to keep the physical therapy appointment for the day
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after I met with . . . Boardman.” Specifically, employee testified that “[i]t was a good idea for
[her] to go [to the appointment] given that . . . Boardman and I disagreed about the need for . . .
further physical therapy, and therefore I wanted to gather further information to discuss with . . .
Tortorella who is the one responsible for coordination of care.” Employee also stated that she
attended the appointment because she believed she would have been charged if she did not
attend.
At the physical therapy session, employee worked with the therapist on a home exercise
program “given that . . . Boardman said that he didn’t think additional physical therapy was
necessary . . . .” Employee started doing some of the exercises with the Thera-Band when she
“felt a snap in [her] neck accompanied by intense pain, pain on the left side with the inability to
turn to the right.”
On May 12, 2011, Dr. Boardman noted in his follow-up visit notes that
[a]pparently [employee] was using some type of Thera-Band or the
equivalent in physical therapy last week, even though I thought we
discontinued her therapy and had acute snapping in the neck. This
was not in the shoulder. She had left-sided neck pain, radiating
pain down the break. She denies numbness and tingling, just really
neck pain. She does not feel there is inherently pain in the
shoulder. She noticed some difficulty now lifting the shoulder.
She considers the source of this to be the neck. She had acute onset
of a loss of range of motion of the neck as well which is improved
somewhat, apparently with a couple of chiropractic visits.
On May 12, 2011, employee filed an accident report stating that she was “[e]ngaged in
physical therapy prescribed for [the] 3/23/11 fall. In midst of physical therapy, I felt a pain [and]
‘snap’ in my neck.” She went further stating that the cause and object of the injury was as
follows: “Original injury caused by fall on broken sidewalk. At the time, focus on dislocated
right shoulder, but neck pain and left shoulder pain were noted.”
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On June 24, 2011, Managed Care Innovations, L.L.C., the workers’ compensation
insurance carrier, sent a letter to employee indicating that they could not pay benefits for her
injury claim for the May 4, 2011 accident. The letter further indicated,
[b]ased on the information obtained through our investigation we
are unable to confirm that you sustained an injury by accident
because your injury on May 4, 2011, occurred while attending a
physical therapy appointment related to your March 23, 2011,
injury. Therefore, your claim is not compensable, according to
section 65.2-101, of the Virginia Workers’ Compensation Act.
On July 7, 2011, employee filed a claim for benefits asserting that she exacerbated her
injuries on May 4, 2011. The deputy commissioner held a hearing on November 9, 2011, and
issued his opinion on January 17, 2012. The deputy commissioner found that employee’s
“May 4, 2011 injuries are not compensable consequence injuries because the medical evidence
. . . indicates that the physical therapy on May 4, 2011 was not necessary medical treatment
causally related to the compensable accident.”
On February 15, 2013, the commission affirmed the deputy commissioner’s holding. The
commission specifically found the following:
1. Based upon the uncontradicted evidence in the file, we find that
[employee] suffered neck and left shoulder pain after performing
an exercise at her May 4, 2011 physical therapy appointment.
2. Based upon [employee’s] testimony, we find that, although she
understood that Dr. Douglas Boardman, her treating orthopedic
surgeon, had discontinued her physical therapy prescription that
had been prescribed to treat her compensable shoulder injury on
May 3, 2011, [employee] attended the May 4, 2011 physical
therapy appointment on her own volition.
3. Based upon [employee’s] testimony and the May 3, 2011 record
of Dr. Boardman, indicating that [employee] was no longer to have
therapy for her compensable right shoulder dislocation, we find
that the May 4, 2011 physical therapy session was no longer
causally related, reasonable and necessary medical treatment for
her compensable injury by accident on March 23, 2011.
* * * * * * *
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5. We find that [employee’s] neck and left shoulder injuries
suffered during the May 4, 2011 physical therapy appointment, an
appointment subsequent to Dr. Boardman’s note discontinuing
[employee’s] physical therapy treatment for her compensable right
shoulder injury, are not a direct result of the March 23, 2011
compensable accident; thus, these injuries are not compensable
consequences of her compensable injury by accident.
Commissioner Marshall dissented, asserting that employee injured herself on May 4, 2011 while
receiving instructions on a home exercise program and that Dr. Boardman had not indicated
whether employee needed such instructions.
This appeal followed.
II. ANALYSIS
A. Procedurally Defaulted Assignments of Error
Employee argues the commission erred in 1) focusing on the doctrine of compensable
consequences; 2) relying exclusively on the medical reports from Boardman, which employee
alleges are not credible; and 3) holding the home exercise program was not reasonable and
medically necessary. Employee, however, fails to cite any principles of law or authority to
support these arguments.
Rule 5A:20(e) provides that “[t]he opening brief of appellant shall contain . . . [t]he
standard of review and the argument (including principles of law and authorities) relating to each
assignment of error.” “Unsupported assertions of error do not merit appellate consideration.”
Fadness v. Fadness, 52 Va. App. 833, 850, 667 S.E.2d 857, 865 (2008) (citation omitted).
“‘[W]hen a party’s failure to strictly adhere to the requirements of Rule 5A:20(e) is significant,
the Court of Appeals may . . . treat a[n assignment of error] as waived.’” Atkins v.
Commonwealth, 57 Va. App. 2, 20, 698 S.E.2d 249, 258 (2010) (quoting Parks v. Parks, 52
Va. App. 663, 664, 666 S.E.2d 547, 548 (2008)).
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Employee failed to provide any legal argument or authority relevant to these three
assignments of error. Although employee has represented herself well as a pro se litigant before
this Court, she “is no less bound by the rules of procedure and substantive law than a [litigant]
represented by counsel.” Townes v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 657
(1987); see also Francis v. Francis, 30 Va. App. 584, 591, 518 S.E.2d 842, 846 (1999) (“Even
pro se litigants must comply with the rules of court.”). Because this deficiency is significant, she
has waived her right to have these assignments of error reviewed by this Court.
B. Compensable Consequences of the March 23 Injury
Employee argues the commission erred in denying her medical benefits for her May 4
injuries because the evidence establishes the causal link between those injuries and her
compensable March 23 injury. Specifically, she contends the home exercise program was a
natural result of “a complicated shoulder dislocation injury.” Further, employee avers that
Tortorella had the ultimate authority to determine the course of her treatment. Therefore,
according to employee, Tortorella required input from her physical therapist, and the commission
erred in discounting the need for the May 4 physical therapy session.
Under the doctrine of compensable consequences, “[w]hen a primary injury under the
Work[ers’] Compensation Act is shown to have arisen out of and in the course of employment,
every natural consequence that flows from the injury is compensable if it is a direct and natural
result of a primary injury.” Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 99 (1977). “‘It
is now uniformly held that . . . exacerbation of the [employee’s] condition . . . resulting from . . .
corrective or exploratory surgery’ is compensable.” American Filtrona Co. v. Hanford, 16
Va. App. 159, 163, 428 S.E.2d 511, 513 (1993) (quoting 1 Arthur Larson, The Law of
Workmen’s Compensation § 13.21(a) (1992)); see, e.g., Williams Indus., Inc. v. Wagoner, 24
Va. App. 181, 189, 480 S.E.2d 788, 791-92 (1997) (affirming the commission’s award of
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benefits where the evidence proved that Wagoner’s hip degradation was caused by a procedure
to treat his compensable back injury); Hanford, 16 Va. App. at 164, 428 S.E.2d at 514 (affirming
the commission’s award for benefits where Hanford’s hepatitis resulted “from a blood
transfusion . . . necessitated by the original industrial injury”). If the second injury, however, “is
the result of an independent intervening cause attributable to [employee’s] own intentional
conduct,” that injury is not compensable. Morris, 3 Va. App. at 283, 348 S.E.2d at 879 (citation
omitted). For example, an injury that “was the expected result of an activity that violated the
doctor’s specific restrictions . . . does not constitute an injury by accident.” Carpet Palace v.
Salehi, 26 Va. App. 357, 362, 494 S.E.2d 870, 872-73 (1998).
“The issue in cases involving the range of compensable consequences flowing from the
primary injury is essentially one of whether the medical evidence proves a causal connection
between the primary injury and the subsequent occurrence.” Wagoner, 24 Va. App. at 188, 480
S.E.2d at 791. “A determination by the [c]ommission upon conflicting facts as to causal
relationship is conclusive and binding on appeal, absent fraud, when such finding is supported by
competent, credible evidence.” Watkins, 225 Va. at 101, 300 S.E.2d at 763.
In the present case, the commission properly denied medical benefits relating to employee’s
May 4 injuries. After employee sustained a compensable injury to her right shoulder on March 23,
2011, Boardman prescribed physical therapy, which employee attended from April 8 through
May 2, 2011. When employee returned to Boardman on May 3, 2001, however, Boardman noted
employee “is doing well” and discontinued the physical therapy.
Despite understanding Boardman’s opinion that she did not require additional physical
therapy, employee attended her May 4, 2011 physical therapy appointment, of her own volition,
because she disagreed with Boardman. The commission concluded that because employee
suffered neck and left shoulder injuries during this May 4 appointment, after understanding the
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therapy had been discontinued, the injuries were not a direct result of the March 23 compensable
accident.
The commission further found that Boardman’s medical opinion instructed employee that
she did not need further physical therapy. Although the record contains several medical reports
that prescribe home exercise programs, “questions raised by conflicting medical opinions will be
decided by the commission.” Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989). Thus, although nothing prevented employee from attending the appointment to
seek information and input from her physical therapist, she was well aware of her attending
physician’s instructions that additional physical therapy was not necessary. In fact, employee
acknowledged that she intended to seek approval from her physical therapist, contrary to the
opinion of her treating physician. This evidence supports the commission’s finding that she
attended the appointment on her own volition and her resulting injuries were “‘attributable to
[employee’s] own intentional conduct.’” Farmington Cntry. Club, Inc. v. Marshall, 47 Va. App.
15, 22, 622 S.E.2d 233, 237 (2005) (quoting Imperial Trash Serv. v. Dotson, 18 Va. App. 600,
606-07, 445 S.E.2d 716, 720 (1994)).
Employee may have believed that additional physical therapy was required to strengthen
her shoulder, but without approval from her attending physician, the treatment was not medically
necessary, and she underwent such self-remedy at her own risk. Employee’s seeking and
performing unauthorized medical treatment constitutes a break in the causal relationship between
her compensable injury and her subsequent May 4 injuries such that the latter is not a
compensable consequence.
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III. CONCLUSION
Because the commission did not err in finding that continued physical therapy was no
longer medically necessary, the denial of benefits is therefore affirmed.
Affirmed.
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