Reynolds Metals Company,et al. v. Patricia Chowning

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
REYNOLDS METALS COMPANY AND
PACIFIC EMPLOYERS INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 0800-00-2 PER CURIAM
AUGUST 22, 2000
PATRICIA MARCHELE CHOWNING
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Patricia C. Arrighi; Taylor & Walker, P.C.,
on brief), for appellants.
No brief for appellee.
Reynolds Metals Company and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Patricia Marchele
Chowning's therapeutic whirlpool tub qualified as reasonable and
necessary medical treatment pursuant to Code § 65.2-603(A)(1).
Upon reviewing the record and opening brief, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. See Rule 5A:27.
In accord with well-established principles, factual
findings made by the commission will be upheld on appeal if
supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"In determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of
the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App.
890, 894, 407 S.E.2d 32, 35 (1991).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the evidence proved that Chowning sustained a
compensable crush injury to her left hand and has been diagnosed
as suffering from reflex sympathetic dystrophy. Chowning
testified that she continues to experience "swelling, pain,
tingling, burning, numbness all at the same time . . . from
[her] fingertips all the way up to [her] [left] shoulder and to
[her] neck and now . . . into [her] legs."
In December 1997, Dr. Keith Glowacki, Chowning's treating
physician, referred her to Dr. William Smith, a pain specialist,
for stellate ganglion block injections. During the course of
these treatments, Chowning has received approximately forty-five
stellate ganglion blocks. On April 16, 1998, Dr. Smith provided
Chowning with a written prescription for a "[h]ot tub spa -- one
that she will be able to soak entire [left] arm, shoulder & neck
in."
Dr. Smith reported that "heat helps [Chowning's] hand and
arm a great deal." Dr. Smith acknowledged that Chowning had
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"requested that [he] support her efforts to obtain a whirlpool
tub which can deliver warmth to her upper extremity" and that he
"fel[t] that [the whirlpool tub] could certainly help her." Dr.
Smith noted that "the hot tub . . . will deliver warmth to her
hand and arm which I think will probably help her symptoms as
well." He further noted that a therapeutic spa "warms the
extremity, which can be very cold with this illness," and that
"there is sound physiological evidence that [the therapeutic
spa] can have the potential of helping [Chowning's] condition."
Chowning testified that in April 1998 she sent Dr. Smith's
prescription for the whirlpool tub to employer's claims
adjuster, Glenn Parker. Chowning also testified that she
telephoned Parker at that time and asked if she could purchase a
hot tub. Parker admitted that he knew that Chowning wanted a
hot tub but testified that he first received the prescription in
April 1999 when Chowning filed her claim for reimbursement.
Parker testified that he offered Chowning a health club
membership in June 1998, which gave her access to a hot tub.
Chowning testified that the health club hot tub was not
adequate. She stopped using it because it was not deep enough,
it contained chlorine which bothered her, it was not available
to her at night when her pain was at its worst, and it was a
forty-five minute drive from her home. Chowning testified that
after her home hot tub was installed in July 1998, she had used
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it daily, and frequently late at night, to significantly relieve
pain.
Code § 65.2-603(A)(1) provides, in pertinent part, as
follows:
[U]pon determination by the treating
physician and the Commission that the same
is medically necessary, the Commission may
require that the employer furnish and
maintain wheelchairs, bedside lifts,
adjustable beds, and modification of the
employee's principal home consisting of
ramps, handrails, or any appliances
prescribed by the treating physician.
(Emphasis added.)
The commission ruled that the therapeutic whirlpool tub was
medically reasonable and necessary and found as follows:
The Deputy Commissioner found that
[Chowning] credibly testified that her pain
is worse at night, and that she finds
significant pain relief by using the hot tub
at all hours of the night. With the home
hot tub, she can take advantage of the
hydrotherapy at the first sign of increasing
pain. The health club, on the other hand,
closes at 10 p.m. so it is inaccessible
during [Chowning's] late night bouts of
pain. Furthermore, . . . [Chowning] has to
travel 45 minutes one way to get to the
health club. Additionally, the hot tub at
the health club does not allow her to soak
her entire neck like the home spa permits.
Dr. Smith prescribed a hot tub in which
[Chowning] could soak her entire arm, neck,
and shoulders. The home hot tub, unlike the
health spa, permits this. We conclude that
the home hot tub is "the best method" of
providing [Chowning] with pain relief. A
health club membership is not equivalent to
this therapy given its limited hours of
operation during [Chowning's] severest pain
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and its considerable distance from [her]
home.
. . . [Chowning] was not required to obtain
pre-authorization from the carrier to obtain
the health spa. . . . [I]f the evidence
showed that her purchase was not reasonable
or necessary or that the cost was excessive,
she acts at her peril and bears the cost
herself. She is not, however, required to
seek and obtain pre-authorization before
purchasing the equipment.
(Footnote omitted.)
Dr. Smith's records and opinions, coupled with Chowning's
testimony, constitute credible evidence to support the
commission's findings that Dr. Smith prescribed the home
therapeutic whirlpool tub and that it constituted reasonable and
necessary medical treatment of Chowning's work-related injury.
As fact finder, the commission was entitled to accept as
credible Chowning's testimony describing her pain and the relief
from pain the hot tub provided. Those credibility
determinations are within the fact finder's exclusive purview.
See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381,
363 S.E.2d 433, 437 (1987).
Because the commission's findings are supported by credible
evidence, they are binding and conclusive on appeal. See James,
8 Va. App. at 515, 382 S.E.2d at 488. Furthermore, the
commission correctly found that there is no support for
employer's argument that Chowning was required to obtain
authorization from employer before purchasing the hot tub.
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For these reasons, we affirm the commission's decision.
Affirmed.
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