Fairfax County School Board v. Fish11/19/2002
MEMORANDUM OPINION
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 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 " 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; (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 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)). " '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 that claimant's fibromyalgia was a "'medical consequence . . . flow from primary injury.'" Hanford, 16 Va. App. at 163, 428 S.E.2d at 513 (quoting 1 Larson, supra, § 13.11).
Dr. Thomas is board
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