Chesapeake Pub. Schs. v. Anderson

CHESAPEAKE PUBLIC SCHOOLS v. LARENA ANDERSON

No. 0236-21-1

Court of Appeals of Virginia

October 5, 2021

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Marilyn N. Harvey (Clarke, Dolph, Hull & Brunick, P.L.C. on briefs), for appellant.

(Christopher L. Daughtry; Rutter Mills, LLP, on brief), for appellee. Appellee submitting on brief.

Present: Judges Huff, AtLee and Malveaux Argued by videoconference

MEMORANDUM OPINION ^[*]

MARY BENNETT MALVEAUX JUDGE

Chesapeake Public Schools ("employer") appeals from a decision of the Virginia Workers' Compensation Commission ("the Commission") affirming an award of temporary total disability benefits to Larena Anderson ("claimant"). Employer argues the Commission erred in considering the opinion of an unauthorized physician and failing to give due weight to the opinion of employer's treating physician. Employer further argues the Commission erred in affirming the deputy commissioner's finding that claimant is entitled to temporary total disability benefits based upon the unauthorized physician's opinion. For the following reasons, we affirm the Commission's decision.

I. BACKGROUND

We review the evidence in the light most favorable to claimant, the prevailing party before the Commission. City of Newport News v. Kahikina, 71 Va.App. 536, 539 (2020).

Claimant worked for employer as an elementary school teacher. As she left her classroom on the evening of September 26, 2018, she slipped on the hallway floor. Claimant grabbed at the wall to attempt to break her fall but found herself "sitting in a wet substance." As claimant stood up, a custodian told her that he had just mopped the area. No sign was posted to warn that the floor was wet. Claimant injured her left hip and lower back.

Claimant reported her accident and injuries to employer and was provided with a list of health care providers from which to seek treatment. She selected NowCare Medical Center and visited NowCare on September 27, 2018. During her initial examination, claimant reported pain in her left buttock that extended through her hip and across her lower back. She also reported pain when bending, twisting, and lifting. Claimant was diagnosed with left hip and lumbar strain and placed on restricted work duties.

On October 8, 2018, claimant filed a claim for benefits for injuries sustained to her left hip, buttocks, and left thigh muscle on September 26, 2018.

During a follow-up visit to NowCare, claimant reported that she could not sit, stand, or walk without severe pain. She also stated that after four sessions of physical therapy, she had made "almost no progress." Claimant later expressed her discouragement that she was not getting better. On October 26, 2018, NowCare referred claimant to an orthopedist because she had "failed conservative therapy."

Employer supplied claimant with the names of several physicians who could provide her with further treatment. Claimant selected Dr. Scott Horn, an osteopath and rehabilitation and pain management physician. During her initial appointment with Dr. Horn on November 14, 2018, the doctor noted claimant's lower back, left hip, and left buttock pain and that physical therapy had failed to improve her condition. He ordered continued light-duty work and scheduled a follow-up visit, during which he treated her with an injection of lidocaine and Depo-Medrol. Claimant reported "[a]lmost complete relief of her pain" following the procedure.

During additional follow-up visits in December 2018 and January 2019, claimant reported relief of her left hip pain but that she continued to experience residual pain in her left sacroiliac joint. She further reported occasional pain in the left lower back when standing for prolonged periods. Claimant was diagnosed with sacroiliitis and released to full-duty work.

By agreement of the parties, on April 10, 2019, the Commission entered an award of lifetime medical benefits for authorized medical treatment causally related to claimant's September 26, 2018 injury. The award was limited to treatment of claimant's left hip and lumbar pain.

Claimant later testified that Dr. Horn's treatment failed to give her lasting relief and that she continued to experience lower back and left hip pain. She researched orthopedists and decided to seek treatment with Dr. Arthur Wardell. During claimant's initial appointment on April 16, 2019, Dr. Wardell, an orthopedist, noted claimant's progressive back pain radiating to her hip. Upon examination of claimant's left hip, Dr. Wardell noted "[n]o fracture, dislocation or degenerative change" but did diagnose a "[l]umbosacral spine sprain." Dr. Wardell also diagnosed a series of other conditions affecting claimant's neck and left arm. He prescribed pain medication and advised claimant to stay out of work.

Claimant informed employer that she was being treated by Dr. Wardell for her lower back issues. Employer told her to return to Dr. Horn and arranged an appointment with him for May 30, 2019.

At that appointment, Dr. Horn noted claimant's report of neck and upper extremity pain as well as her complaint of persistent left hip pain. He further noted that she had had an MRI which indicated synovitis of the left hip as well as "low-grade sprain." Dr. Horn told claimant that he did not think her workplace injury and her neck and arm pain were related. He noted that claimant had reached maximum medical improvement, no further treatment was required at that time, and claimant could return to full-duty work. Dr. Horn provided employer with a letter to that effect and authored a note stating that claimant's neck and arm pain were not related to her September 26, 2018 workplace injury.

Claimant later testified that during her appointment with Dr. Horn on May 30, 2019, Dr. Horn did "nothing, he sat across [from me]. He didn't even examine me that day."

From June 2019 through February 2020, claimant returned monthly to Dr. Wardell's practice. During that time, she continued to report pain in her neck, left arm, lower back, left leg, and buttock. She also experienced lower back spasms and left leg numbness, tingling, and reduced sensation. Dr. Wardell ordered an MRI and treated claimant with pain medication, physical therapy, and a lumbar orthosis, or lower back brace. Dr. Wardell noted that claimant's MRI indicated "[m]ild neural foraminal stenosis L3 through S1." He continued to diagnose her with a lumbar sprain and instructed her to remain out of work.

On February 27, 2020, claimant filed a claim seeking payment of her medical expenses from Wardell Orthopedics as well as temporary total disability benefits.

On March 20, 2020, Dr. Wardell prepared a letter for claimant's attorney. After stating that he had reviewed claimant's treatment records from the period prior to his first appointment with her, Dr. Wardell wrote that claimant

was involved in a slip and fall accident . . . at work. She was treated with physical therapy, injection therapy, and oral steroids prior to seeing me. . . . [S]he developed progressive neck pain, but this did not manifest itself for several months . . . . I have seen [claimant] for both neck complaints and back complaints. She has had an MRI of her lumbar spine, which shows neural foraminal stenosis at L3 through S1, and at almost every examination she has had restrictions of motion, tenderness, and often spasm in her back. It has also been noted that she has pain radiating down the left leg with numbness and tingling in her left foot.

I cannot say to a reasonable degree of medical certainty that [claimant's] neck complaints are directly attributable to her slip and fall accident insofar as her neck symptoms did not occur until several months after her accident; however, to a reasonable degree of medical certainty, [claimant] incurred a lumbosacral spine sprain and lumbar radiculopathy as a result of her slip and fall of September 26, 2018. Disregarding any neck issues, [claimant] would still be out of work for her back injury . . . .

At a hearing before the deputy commissioner, claimant testified that the lower back brace prescribed by Dr. Wardell helped her with mobility and walking and that neither Dr. Horn nor anyone at NowCare had prescribed any such item for her. When counsel for employer asked claimant why she had not returned to see Dr. Horn after May 30, 2019, claimant responded that "Dr. Wardell got to the bottom of what was going on with me."

The deputy commissioner held that the evidence did not support a finding that Dr. Horn's treatment was medically inappropriate or that other circumstances justified requiring employer to pay for Dr. Wardell's unauthorized medical treatment. However, the deputy commissioner also held that after considering the evidence, and particularly the records and medical opinion of Dr. Wardell, claimant had proven that she was totally disabled due to her left hip and lower back injuries. Accordingly, the deputy commissioner awarded claimant temporary total disability benefits from June 28, 2019 and continuing.

Employer requested review of the disability finding by the full Commission.

On February 8, 2021, a majority of the Commission affirmed the deputy commissioner, stating:

We note that when the claimant was initially treated at NowCare, they recommended treatment with an orthopedist. The employer, however, provided a panel of pain management doctors from which the claimant chose Dr. Horn. While Dr. Wardell was not an authorized treating physician, as an orthopedic specialist who has treated the claimant since April 2019, we find his opinion regarding the claimant's disability persuasive. . . . In his March 20, 2020 correspondence, Dr. Wardell opined that the claimant's disability was related to her lumbosacral spine sprain

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