Fairfax County School Board v. Sally R Fish ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia
FAIRFAX COUNTY SCHOOL BOARD
MEMORANDUM OPINION* BY
v. Record No. 1159-02-4 JUDGE LARRY G. ELDER
NOVEMBER 19, 2002
SALLY R. FISH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael N. Salveson (Hunton & Williams, on
briefs), for appellant.
(Sally R. Fish, pro se, on brief). Appellee
submiting on brief.
The Fairfax County School Board (employer) appeals from a
decision of the Workers' Compensation Commission (the
commission) holding that Sally R. Fish (claimant) is entitled to
medical benefits for ongoing palliative treatment. On appeal,
employer contends that (1) the commission erroneously concluded
claimant's fibromyalgia is causally related to her industrial
injury by accident, (2) the commission failed to make a finding
regarding whether ongoing treatment was "reasonable and
necessary medical attention" within the meaning of Code
§ 65.2-603, and (3) the evidence does not support a finding that
it was "reasonable and necessary." We hold the commission
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
implicitly found the treatment was medically necessary and that
credible evidence supported both that finding and the finding
that claimant's fibromyalgia was causally related to her
compensable industrial injury. Thus, we affirm.
On appeal of a decision of the commission, we construe the
evidence in the light most favorable to the party prevailing
below, and we must uphold the commission's findings of fact if
the record contains credible evidence to support them. See,
e.g., Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 712, 427
S.E.2d 215, 217 (1993).
Code § 65.2-603(A)(1) provides that for "[a]s long as
necessary after a [compensable industrial] accident, the
employer shall furnish or cause to be furnished, free of charge
to the injured employee, a physician chosen [in the manner
prescribed by the Workers' Compensation Act] and such other
necessary medical attention." Whether the employer is
responsible for medical expenses under this Code section
depends, inter alia, upon "(1) whether the medical service was
causally related to the industrial injury; [and] (2) whether
such other medical attention was necessary." Volvo White Truck
Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).
A claimant bears the burden of proof on these issues by a
preponderance of the evidence. McGregor v. Crystal Food Corp.,
1 Va. App. 507, 508, 339 S.E.2d 917, 918 (1986). As with any
medical determination to be made under the Act, the opinion of
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the treating physician is entitled to great weight. See, e.g.,
Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339
S.E.2d 570, 572 (1986).
A.
CAUSATION
An employer's liability for an industrial injury extends to
"'all the medical consequences and sequelae that flow from the
primary injury.'" 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 § 13.11 (1992)). "[A]
'question [of causation] raised by "conflicting expert medical
opinions" is one of fact.'" Georgia-Pacific Corp. v. Robinson,
32 Va. App. 1, 5, 526 S.E.2d 267, 268 (2000) (quoting Eccon
Constr. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799
(1981)). However, once that conflict has been resolved in favor
of the party prevailing below, whether the evidence is
sufficient to prove causation is a question of law subject to
independent review. See Morris v. Morris, 238 Va. 578, 579, 385
S.E.2d 858, 865 (1985).
Here, the commission was entitled to accept the opinions of
claimant's treating physicians, Drs. A. Bruce Thomas, II, and
Thomas M. Fogarty, over those of employer's experts, Drs. Brian
Schulman and Roger V. Gisolfi. Further, the opinions of
Drs. Thomas and Fogarty, viewed in conjunction with the record
as a whole, were sufficient to support the commission's finding
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that claimant's fibromyalgia was a "'medical consequence[] . . .
flow[ing] from [her] primary injury.'" Hanford, 16 Va. App. at
163, 428 S.E.2d at 513 (quoting 1 Larson, supra, § 13.11).
Dr. Thomas is board certified in physical medicine and
rehabilitation with a focus on pain management and has several
years experience in treating patients with fibromyalgia.
Dr. Thomas and his partner treated claimant for her fibromyalgia
for three years before the present proceedings began.
Dr. Thomas explained that fibromyalgia is "a complex, chronic
condition, which causes diffuse pain in the body's muscles,
tendons, ligaments and other soft tissues and often [causes]
fatigue." He further explained that fibromyalgia is commonly
triggered by a physical trauma to the body, such as the one
claimant experienced on April 29, 1987.
Dr. Thomas opined, based on his treatment of claimant,
"[i]t is medically probable that [claimant's] fibromyalgia was
caused by her 1987 accident," and "to a reasonable degree of
medical certainty, I can attribute [claimant's] present
condition to her accident in 1987." Dr. Thomas noted, as
supported by claimant's medical records, that claimant was
diagnosed with myofascial pain, a component of fibromyalgia,
shortly following her 1987 accident. Dr. Thomas noted that
fibromyalgia is a difficult condition to diagnose and that
claimant could not have received a diagnosis of fibromyalgia
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when she first displayed symptoms in 1987 because the diagnostic
criteria for the condition were not established until 1990.
Dr. Fogarty rendered a similar opinion. Dr. Fogarty is
board certified in internal medicine and psychiatry, treated
claimant for four years prior to these proceedings, and reviewed
claimant's medical records prior to rendering his opinion
regarding her condition. Dr. Fogarty noted that, in his
treatment of claimant, he observed "muscular spasm related to
her fibromyalgia [which] was objective and palpable." He
further observed that claimant's medical records contain a 1987
diagnosis of myofascial pain syndrome and "clearly [show]
evidence of a myofascial pain syndrome which dates to [her
compensable industrial] injury in 1987. Her pain became severe
within months of her fall at work, and her pain began to spread
within weeks of the incident." Dr. Fogarty explained that
fibromyalgia "is a term which is frequently interchanged with
myofascial pain" and that claimant received an express diagnosis
of fibromyalgia from Dr. Katherine Maurath in 1996.
Ultimately, Dr. Fogarty opined that claimant's work injury
of April 29, 1987, "continued and progressed into a more
generalized myofascial or fibromyalgia pain syndrome." He noted
that "the weight of the evidence is clearly indicated [in
claimant's case]" by "the chronology of [claimant's] history,"
"the amount of her records that are devoted towards her physical
therapy modalities," and the absence of "suggestion of any
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secondary gain or of a primary psychiatric condition that would
explain the course of her illness."
Finally, the office notes of Dr. Paul A. Buongiorno support
a finding that he, too, believed claimant's fibromyalgia was
causally related to her 1987 injury. Dr. Buongiorno began
treating claimant in conjunction with her admission to the pain
clinic in 1987, when the symptoms from her industrial injury
proved to be both chronic and spreading, and he treated her
continuously, for that condition and others, until 1995.
Although Dr. Buongiorno's first mention of fibromyalgia appears
in his final office note of October 19, 1995, he noted on May
23, 1995, that claimant's problems were merely "a recent flair
of her [ongoing] symptoms." Thus, Dr. Buongiorno's notes also
support a finding that the "severe myofascial pain syndrome" for
which he had treated claimant since 1987 was fibromyalgia and
that it was causally related to her industrial injury.
Employer contends the commission could not rely on
Dr. Fogarty's opinion because he appears to have believed,
incorrectly, that claimant was never able to return to work
following the 1987 injury when the evidence shows she was both
able to work for four years and able to engage in activities
such as skiing without pain or injury in 1992. Employer also
notes claimant required almost no medical attention for over two
years after her retirement and contends that this fact breaks
the causal connection between claimant's subsequently diagnosed
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fibromyalgia and her 1987 industrial injury and shows further
flaws in claimant's expert medical evidence. We disagree.
Dr. Fogarty's opinion letter is unclear on the state of his
knowledge regarding whether claimant returned to work after her
1987 injury. Assuming Dr. Fogarty believed claimant could not
work, his belief, though erroneous, did not render his opinion
inherently incredible or require its automatic rejection.
Whether claimant was able to work was not directly at issue in
the proceedings before the commission, and Dr. Fogarty's
misunderstanding regarding claimant's ability to work, if one
existed, was simply one factor for the commission to evaluate in
considering the evidence and determining what weight to give the
various medical opinions.
As for whether claimant was able to ski in 1992, the record
contains no direct evidence on this point. Rather, it contains
two hearsay statements purportedly made by claimant to two of
her health care providers. The 1992 records of a physical
therapist indicate claimant reported skiing without pain or
injury in 1992, whereas Dr. Fogarty's records indicate
claimant's 2001 statement that she went on a skiing vacation in
1992 but did not ski. The commission was free to disregard this
evidence for any of several reasons. First, as noted above, it
was hearsay evidence the reliability of which was indirectly
challenged by claimant. Second, as the deputy commissioner
found, the evidence established that claimant's condition "waxes
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and wanes and will permit her from time to time to
increase/decrease her medical treatment regimen and activities."
It was undisputed that, from time to time following claimant's
retirement in 1992, she was able to engage in activities such as
aerobics, bicycling and sailing and that some of these
activities were prescribed as treatment for her condition.
Finally, we reject employer's argument that claimant failed
to prove the necessary causal link between her industrial injury
and fibromyalgia because she required less medical treatment for
her condition during the first two-and-one-half years following
her retirement in 1992. The evidence supports a finding that
claimant's symptoms, although decreased, were ongoing during
this period of time and that claimant was able to manage them
herself because she now had time to implement a home exercise
program, to avoid body postures like prolonged standing or
sitting which tended to aggravate her condition, and to rest
when necessary.
Claimant's medical records dating back to 1987 indicate her
reports that job duties such as "a lot of demonstration and
standing," desk work grading papers, and lifting and carrying
books aggravated her condition. She also reported that when she
was on vacation from school, she experienced less pain because
she could "rest, stretch, be physically active, and take care of
herself." When she retired in 1992, she continued weekly
physical therapy but began to exercise more on her own and was
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eventually able to discontinue her physical therapy due to her
self-management program.
Although claimant did not receive physical therapy
specifically for her 1987 back injury again until 1995,
Dr. Buongiorno, who treated claimant for her industrial injury
from 1987 through 1995, referred her to physical therapy for an
unrelated rib injury in 1992 and asked the therapist to "check
[her] old injury," as well. She continued to take Pamelor and
Motrin throughout this period of time. In early 1993, when
Dr. Buongiorno detected "minor muscle knots" in claimant's
cervical region, claimant reported she had been getting less
exercise since breaking her rib. In April 1994, claimant
reported she was taking sailing lessons but still required
Pamelor and Motrin for her back pain. In late 1994,
Dr. Buongiorno noted that claimant was "doing well overall" but
that she continued those medications and received physical
therapy as needed. Finally, claimant reported to Dr. Schulman
that while she remained under the care of Dr. Buongiorno, he
"would periodically inject . . . novocaine[] into . . .
'multiple trigger sites' throughout her back and chest." She
also reported using her TENS unit "for the past ten years."
This evidence supported a finding that claimant's pain, although
decreased, was ongoing following her retirement and was directly
related to the more frequent flare-ups she began to experience
in 1995.
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Thus, the opinions of Drs. Thomas and Fogarty, coupled with
claimant's medical records dating back to her 1987 injury,
constitute credible evidence that claimant's condition,
fibromyalgia, was causally related to her industrial injury,
despite the opinions of Drs. Schulman and Gisolfi that no causal
connection existed. 1
1
Employer also objects to the commission's consideration of
the opinion of a massage therapist, Alta Sue Muris, in its
analysis of the causation issue, arguing that the ability to
express medical opinions lies within the exclusive province of
licensed physicians. See, e.g., Woehr v. Bridgewater Home,
Inc., No. 151-55-14 (Va. Workers' Comp. Comm'n Dec. 6, 1994)
(noting that commission's recognized exception to hearsay rule
which permits admission of medical opinions over hearsay
objection does not extend to opinions by physical therapists
"except to the extent such opinions may be ratified and
incorporated into the medical reports of licensed physicians as
their own opinions").
Assuming without deciding that the commission's repeated
holdings that only doctors can express medical opinions is the
correct state of the law, we presume, in the absence of evidence
to the contrary, that the commission knew and followed its own
repeated prior pronouncements of the law. See Yarborough v.
Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977)
(holding trial court is presumed to know and properly apply the
law "[a]bsent clear evidence to the contrary in the record").
Here, the commission merely mentioned in its recitation of the
facts Muris's statement that claimant "has no desire to be in a
sick role." The commission, in its legal analysis, made no
mention of Muris's opinion and said merely that the relatedness
of the fibromyalgia to her industrial injury "is readily
traceable through the medical records, and is further
substantiated by the claimant's current authorized treating
physicians." (Emphasis added). Thus, we presume no error
occurred.
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B.
"NECESSARY" MEDICAL TREATMENT UNDER CODE § 65.2-603
"[N]ecessary medical attention" under Code § 65.2-603 may
include palliative treatment. H.J. Holz & Son, Inc. v.
Dumas-Thayer, 37 Va. App. 645, 655, 561 S.E.2d 6, 11 (2002).
"Whether 'such other medical attention' be deemed necessary is
for the attending physician or . . . [c]ommission to determine,
not the employer." Jenson Press v. Ale, 1 Va. App. 153, 159,
336 S.E.2d 522, 525 (1985) (decided under former Code § 65.1-88,
predecessor to Code § 65.2-603). It is a mixed question of law
and fact. Goad, 15 Va. App. at 712-13, 427 S.E.2d at 217.
Employer contends both that the commission failed to make a
finding regarding whether ongoing treatment was "reasonable and
necessary medical attention" within the meaning of Code
§ 65.2-603 and that the evidence does not support such a
finding. Again, we disagree.
The deputy commissioner concluded explicitly that the
challenged treatment was "reasonable and necessary." Although
the commission did not specifically repeat the deputy's finding
on this issue and did not make an express finding that the
treatment was "necessary," it recognized that claimant bore the
burden of proving "such other medical attention was necessary,"
and it expressly affirmed the deputy's "Opinion." Although the
better practice would be for the commission to make express
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findings of fact and conclusions of law on disputed issues, we
conclude the commission's holding was sufficient.
We hold further that the evidence was sufficient to support
this ruling. Treating Physician Thomas, board certified in
physical medicine and rehabilitation, opined that the symptoms
of fibromyalgia, if untreated, can become "severely disabling
and progressive." He noted that claimant is "extremely
compliant in maintaining a home program of aerobic muscle
conditioning and stretching and reducing as many environmental
triggers as possible." Dr. Fogarty agreed that claimant "has
been a disciplined and compliant patient who has dealt with her
illness in an exemplary fashion."
In addition to claimant's independent efforts, Dr. Thomas
described the various treatments he has prescribed "to improve
[claimant's] symptoms, with much success":
I have prescribed Serzone and Flexeril to
reduce her pain, diminish her fatigue, and
relax her muscles when she is having severe
spasms. Stretching, myofascial release and
other physical therapies have been used.
[Claimant] requires treatments such as
trigger point injections, acupuncture,
biofeedback, EEG-driven stimulation and
relaxation therapy. These treatments used
alone or in combination have been
particularly successful in [claimant's] case
but provide only temporary relief. They
allow her to remain independent in her
functional mobility and self care skills and
control her pain to a moderate level most of
the time. It is evident in my opinion that
without these treatments [claimant] would be
living an unbearably pain filled dependent
life.
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Dr. Fogarty's opinion letter supported this conclusion.
Although Dr. Fogarty did not focus on the treatments claimant
had received in as specific a fashion as Dr. Thomas did, he
expressly noted that "[his] role in [claimant's] treatment has
been to assist in coordinating her physical therapy modalities
and managing her pain as well as associated anxiety, depression
and insomnia with medication, in an effort to optimize her
functional capacity." His records established that he
prescribed ongoing physical therapy, massage therapy,
acupuncture and trigger point injections. Dr. Fogarty also
noted that, in addition to claimant's own efforts, "[claimant]
has been able to maintain a level of function and reduction of
pain due to the diligent efforts of many professionals over an
extended period of time."
Thus, Dr. Thomas's opinion, which the commission found
credible and which employer conceded on brief was "probative" on
"the medical necessity issue," supported by Dr. Fogarty's
opinion, established that claimant's ongoing treatments for her
fibromyalgia, including trigger point injections and physical
therapy, are "necessary" treatments within the meaning of Code
§ 65.2-603. The fact that the record may contain a contrary
opinion from Dr. Schulman is irrelevant because credible
evidence supports the decision of the commission.
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For these reasons, we hold that the commission implicitly
found the challenged treatment was medically necessary and that
credible evidence supported both that finding and the finding
that claimant's fibromyalgia was causally related to her
compensable industrial injury. Thus, we affirm.
Affirmed.
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