Robert M. Anselmo v. Cherrydale Motors, Inc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
ROBERT M. ANSELMO
MEMORANDUM OPINION *
v. Record No. 2503-98-3 PER CURIAM
MAY 4, 1999
CHERRYDALE MOTORS, INC. AND
HURON INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Philip F. Hudock, on briefs), for appellant.
(Matthew W. Broughton; Mary Beth Nash;
Gentry, Locke, Rakes & Moore, on brief), for
appellees.
Robert M. Anselmo (“claimant”) contends that the Workers’
Compensation Commission (“commission”) erred in finding that (1)
he failed to prove that the home health care services provided to
him in the home of Jule Walowac did not qualify as “other
necessary medical attention” under Code § 65.2-603; (2) Cherrydale
Motors, Inc. and its insurer (hereinafter referred to as
“employer”) were not estopped from denying payment for at least
four hours per day of Walowac’s care based upon employer’s written
and/or oral admissions; and (3) claimant was not entitled to an
award of attorney’s fees under Code § 65.2-713(A). Upon
reviewing the record and the briefs of the parties, we conclude
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
that this appeal is without merit. Accordingly, we summarily
affirm the commission’s decision. See Rule 5A:27.
I. and II.
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).
Unless we can say as a matter of law that claimant’s evidence
sustained his burden of proof, the commission’s findings are
binding and conclusive upon us. See Tomko v. Michael’s
Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Code § 65.2-603 (formerly Code § 65.1-88) provides that
“[a]s long as necessary after an accident, the employer shall
furnish or cause to be furnished, free of charge to the injured
employee, a physician . . . and such other necessary medical
attention.” In Warren Trucking Co. v. Chandler, 221 Va. 1108,
1116, 277 S.E.2d 488, 493 (1981), the Supreme Court set forth
the standards to be applied in determining what constitutes
“other necessary medical attention.” One of those standards
requires that “the medical attention is performed under the
direction and control of a physician, . . . [who] must state
[that] home nursing care is necessary . . . and must describe
with a reasonable degree of particularity the nature and extent
of duties to be performed by the [aide].” Id. In addition,
“the care rendered by the [aide] must be of the type usually
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rendered only by trained attendants and beyond the scope of
normal household duties.” Id. In ruling that claimant’s
evidence failed to meet these two requirements, the commission
found as follows:
[I]f Dr. [Charles B.] Jackson ever specified
particular treatment or other activities
that Jule Walowac was to perform, we have
been unable to find that in this record.
The comments made by Dr. Jackson in his
March 21, 1997 and May 1, 1997 letters are
too general to meet the standard required by
Chandler. In Tageldin v. St. Paul Fire &
Marine Insurance Company, VWC File No.
118-93-66 (3-12-92), payment was sought for
home services that included cleaning
bathrooms, changing linen in the bedrooms,
helping take out trash and helping carry
laundry to the first floor of the injured
worker’s apartment building. We held that
those types of services did not qualify as
“other medical attention” and that they were
not compensable under the Act.
No evidence in the record established that Walowac
performed “medical attention” under the direction and control of
a physician. As the commission correctly noted, “Dr. Jackson
wrote several letters to claimant’s counsel indicating in
general terms that there were some discussions with the claimant
and Jule Walowac; however, we do not see any specific medical
services that she was to render to the claimant.” Rather, Dr.
Jackson described “assistance with transfers, lifting and
carrying to take tub baths, lifting and carrying to get in and
out of the car, and lifting and carrying to do activities that
would avoid excessive stress to the lower extremities which were
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severely injured.” In addition, Walowac testified that she
assisted claimant with ambulating, bathing, dressing, feeding,
and transportation. She also helped him elevate his legs, and
remove a type of boot or brace that he wears on his right leg.
Walowac did not receive any particular training in order to
perform these duties. “None of these duties, when considered in
light of the claimant’s condition and the extent of his
disability, is of the type usually rendered by trained
attendants.” Chandler, 221 Va. at 1118, 277 S.E.2d at 494.
Furthermore, we find no merit in claimant’s assertion that
the holding in Chandler should not apply to this case and that
this Court should draw a distinction between services rendered
by a spouse versus a close friend, such as Walowac. We also
find no merit in claimant’s argument that the commission should
have estopped employer from denying payment for Walowac’s
services based upon its admissions. The commission was entitled
to weigh employer’s April 22, 1997 letter and Nurse Snow’s
testimony and determine what weight, if any, to give that
evidence.
Based upon this record, we cannot say as a matter of law
that claimant’s evidence proved that Walowac’s services
qualified as “other medical attention” as defined by Code
§ 65.2-603 or by the Supreme Court in Chandler.
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III.
Code § 65.2-713(A) provides for the assessment of
attorney’s fees and costs against an employer or insurer who has
defended a claim “without reasonable grounds.” “[W]hether the
employer defended a proceeding without reasonable grounds is to
be judged from the perspective of the employer, not the
employee.” Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 716,
427 S.E.2d 215, 219 (1993). The determination of whether to
award attorney’s fees and costs against an employer who has
defended a proceeding without reasonable grounds is left to the
sound discretion of the commission. See Jensen Press v. Ale, 1
Va. App. 153, 159, 336 S.E.2d 522, 525 (1985).
Claimant’s claim for attorneys’ fees arose out of his
assertion that employer failed to pay certain outstanding
medical bills in a timely manner. At the hearing, employer’s
counsel proffered legitimate reasons for its delay in paying the
bills. In addition, employer’s counsel stated that the bills
had either been paid prior to the hearing or were in the process
of being paid. Claimant did not dispute those statements. The
commission, as fact finder, was entitled to accept employer’s
explanation. Thus, based upon this record, we find no abuse of
discretion in the commission’s refusal to assess attorney’s fees
and costs against employer.
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For the reasons stated, we affirm the commission’s
decision.
Affirmed.
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