COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton, Bumgardner
and Lemons
Argued at Richmond, Virginia
FAIRFAX COUNTY SCHOOL BOARD
OPINION BY
v. Record No. 1700-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 26, 1999
ELLEN M. ROSE
UPON A REHEARING EN BANC
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael N. Salveson (Hunton & Williams, on
brief), for appellant.
Michael E. Canode for appellee.
Fairfax County School Board ("employer") appealed the
Workers' Compensation Commission's decision granting the change
in condition application of Ellen M. Rose ("claimant"). Employer
contended the commission erred in: (1) finding that claimant
effectively cured her prior unjustified refusal of necessary
medical attention; (2) finding that claimant timely cured her
prior refusal of medical care; and (3) relying upon an
unpublished opinion of this Court.
In Fairfax County Sch. Bd. v. Rose, 27 Va. App. 587, 500
S.E.2d 273 (1998), a divided panel of this Court reversed the
commission's award of benefits and remanded the case. We granted
rehearing en banc, and upon rehearing, we affirm the commission's
decision. We hold that: (1) for a verbal cure of unjustified
refusal of medical care to be effective, it must be made in good
faith, and (2) claimant's letter informing employer of her
willingness to undergo surgery was made in good faith and cured
her prior unjustified refusal of medical treatment.
I.
On March 20, 1991, claimant sustained an injury by accident
to her back in the course of her employment. Employer accepted
the resulting claim as compensable and paid temporary total
disability benefits of $307.94 per week beginning March 28, 1991,
pursuant to the commission's award entered September 12, 1991.
Claimant's treating physician, Dr. James W. Preuss, and
several consulting physicians recommended as early as September
1991 that claimant undergo back surgery to repair two herniated
lumbar discs. Claimant refused the surgery. In July 1993, a
functional capabilities evaluation revealed that claimant was
unable to perform any type of work activity and had significant
difficulty with ordinary tasks of daily living. In his answers
to interrogatories filed November 2, 1993, Dr. Preuss stated that
back surgery was the most reasonable and effective form of
treatment for claimant's herniated discs and that if claimant
were willing to undergo the surgery, Dr. Preuss would so
recommend. He further stated that, with surgery, claimant had a
good probability of returning to her regular work.
By the deputy commissioner's opinion of June 27, 1994,
effective November 7, 1993, the claimant's disability benefits
were suspended on the ground that claimant unjustifiably refused
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recommended back surgery. The deputy commissioner found that
surgery was reasonable and necessary medical care for claimant's
herniated discs. The commission and this Court dismissed
claimant's procedurally defective appeals of that decision, and
the deputy commissioner's decision became final.
In July 1994, claimant attempted suicide and was
hospitalized and treated for depression. After her release, she
was placed on medication that affected her memory and restricted
her ability to function. Claimant also suffered from
agoraphobia, which limited her ability to go out in public. She
was treated for these conditions by a psychiatrist and a licensed
clinical social worker from 1994 through 1996.
On November 6, 1995, claimant filed two applications for
hearing seeking reinstatement of compensation. One was denied
and is not before this Court. The second application alleged a
change in condition and sought reinstatement of benefits as of
November 6, 1995 and continuing, on the ground that she was
willing to submit to surgery by Dr. Preuss, the physician
treating her back injury. In addition, claimant's counsel
notified counsel for employer by letter that "Ms. Rose is now
willing to undergo the lumbar surgery proposed by Dr. Preuss.
Please contact me regarding the scheduling of an appointment with
Dr. Preuss."
On February 29, 1996, claimant kept an appointment with Dr.
Preuss and declared her willingness to have surgery. In
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supplemental interrogatories filed on August 1, 1996, Dr. Preuss
stated that he discussed surgery with claimant in February 1996
but that he did not recommend surgery at that time because of her
stable condition. In his deposition, Dr. Preuss explained that
claimant's condition was "stable" because she had not exhibited
any worsening of her neurological condition since 1992. He
testified that, in any case where the patient's neurological
examination is stable and the patient is willing to tolerate the
level of pain and incapacity, he would not recommend surgery and
would regard it as an elective procedure. Dr. Preuss stated that
claimant's inability to work played no part in his recommendation
regarding surgery. Dr. Preuss acknowledged that if claimant were
willing to undergo surgery her symptons would improve.
After a hearing on July 9, 1996, the deputy commissioner
found that claimant failed to cure her unjustified refusal before
November 6, 1995. Consequently the issue became whether her
November 6 application and letter to employer's counsel stating
that she was willing to undergo surgery constituted a timely and
effective cure. Finding that "claimant was only required to
cease her unwillingness and refusal to undergo surgery," the
deputy commissioner concluded that claimant's counsel's letter of
November 6, 1995 effectively cured her earlier unjustified
refusal of medical treatment within the statutory time limit.
On review, the full commission determined that "the main
issue [was] . . . whether the applications and letter of November
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6, 1995, effectively cured the claimant's refusal of the
recommended surgery." While noting its own decision in Lester v.
Northern Mineral Corp., 64 O.I.C. 203 (1985), the commission
relied on the unpublished opinion of this Court in Bane v.
Rosslyn Concrete Constr. Co., No. 2598-92-4, 1994 WL 43332 (Va.
Ct. App. Feb. 15, 1994). The commission concluded the following:
In this case, the claimant has cured her
prior refusal of medical treatment. She was
seen by Dr. Preuss on February 29, 1996, and
on July 23, 1996, she indicated her
willingness to go forward with surgery. The
claimant has done all that she can do until
surgery is scheduled. . . . Based on a
review of the evidence before us, we find
that she has cured her refusal of surgery, if
it is still recommended, and that benefits
were properly reinstated.
II.
On appeal, employer contended claimant failed to timely cure
her prior unjustified refusal of medical care. A divided panel
of this Court agreed and reversed the commission's decision.
Upon rehearing en banc, we hold that claimant timely cured her
prior unjustified refusal of medical care.
Code § 65.2-708(A) provides: "[O]n the ground of a change
in condition, the Commission may review any award and on such
review may make an award ending, diminishing or increasing the
compensation previously awarded." However, "[n]o such review
shall be made after twenty-four months from the last day for
which compensation was paid." Code § 65.2-708(A). In the
instant case, claimant was last paid compensation for the period
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ending November 7, 1993. Code § 65.2-708 terminated her right to
continued disability compensation unless she cured her prior
unjustified refusal of medical treatment by November 7, 1995.
Claimant failed to cure her unjustified refusal of medical
care prior to November 6, 1995. The sole issue before us is
whether claimant's November 6, 1995 letter informing employer of
her willingness to undergo surgery cured her prior unjustified
refusal of medical treatment. This issue presents a mixed
question of law and fact and may be reviewed de novo by this
Court. See Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60,
68, 455 S.E.2d 267, 271 (1995).
The effectiveness of a cure by words alone, a "verbal
cure," 1 in the context of an unjustified refusal of medical
treatment, is an issue of first impression. However, in the
analogous area of the cure of a refusal of selective employment
or vocational rehabilitation, we have held that a verbal cure is
effective if it is made in good faith. See Christiansen v. Metro
Bldg. Supply, Inc., 18 Va. App. 721, 724, 447 S.E.2d 519, 521
(1994), aff'd on reh'g, 19 Va. App. 513, 453 S.E.2d 302 (1995)
(refusal of selective employment may be cured by claimant's offer
to accept the previously refused employment if made "in good
faith"); James v. Capitol Steel Constr. Co., 8 Va. App. 512, 518,
1
A "verbal cure" is a statement indicating willingness to
cure which is unaccompanied by curative action. A verbal cure
may be spoken, see James v. Capitol Steel Constr. Co., 8 Va. App.
512, 518, 382 S.E.2d 487, 490 (1989), or written, as in the
instant case.
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382 S.E.2d 487, 490 (1989) ("[a]ssuming that the refusal to
cooperate with vocational rehabilitation could be cured by a
verbal statement of willingness to cooperate . . . it must be
made in good faith"); Thompson v. Hampton Institute, 3 Va. App.
668, 671, 353 S.E.2d 316, 317 (1987) (claimant may cure refusal
of selective employment when he "in good faith advises his
employer that he is willing to accept such work").
We have "historically treated and discussed [these similar
areas] in conjunction with one another," Hercules, Inc. v.
Carter, 13 Va. App. 219, 223, 409 S.E.2d 637, 639 (1991), aff'd
on reh'g en banc, 14 Va. App. 886, 419 S.E.2d 438 (1992), and we
now hold that for a verbal cure of an unjustified refusal of
medical care to be effective, it must be made in good faith. A
claimant must demonstrate his or her good faith through an
affirmative action or a showing of circumstances mitigating the
failure to act. 2
2
Although we are not bound by the decisions of the
commission, our holding is consistent with the commission's
cases, which, although they do not focus on a finding of good
faith, do require affirmative action of the claimant in the
absence of mitigating factors. See Smith v. Kershaw Automotive,
No. 153-36-02 (Workers' Comp. Comm'n Aug. 24, 1994) (claimant's
letter to employer's counsel stating his willingness to accept
selective employment, absent mitigating circumstances, failed to
cure prior refusal); McLaughlin v. Manville Sales Corp., 73
O.W.C. 185, 186 (1994) ("We have consistently held that something
more than a mere statement of willingness to cooperate is
required. The claimant must take some affirmative action . . .
demonstrating his willingness to cooperate [with vocational
rehabilitation]."); Hughes v. Fred Dehner Sawmill, Inc., No.
147-60-14 (Workers' Comp. Comm'n July 12, 1993) (claimant's
refusal to submit to an independent medical examination while
appeal was pending was cured by his written agreement to submit
to the exam if the outcome of the appeal required it); Lester v.
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Under the circumstances presented, we hold that claimant's
letter of November 6, 1995, combined with the mitigating factors
hereinafter described, effected a cure of her prior unjustified
refusal of medical treatment. Clearly claimant's mental
conditions of depression and agorophobia constituted mitigating
circumstances which explained any delay in contacting Dr. Preuss.
While it would have been preferable for claimant to have seen
Dr. Preuss on November 7, 1995 rather than February 29, 1996, her
actions constituted the requisite good faith necessary to
accomplish the verbal cure. At her later appointments with Dr.
Preuss on February 29, 1996 and July 23, 1996, claimant
reaffirmed her willingness to have the surgery, but, in light of
her stable condition, Dr. Preuss no longer recommended it.
Claimant's psychological condition and her statements to her
treating physician, that she was willing to submit to surgery if
it was still recommended, were affirmative actions which
reinforced that her November 6, 1995 statement was made in good
faith. We hold that claimant timely and effectively cured her
prior refusal of medical care and, accordingly, affirm the
3
commission.
Northern Mineral Corp., 64 O.I.C. 203, 205 (1985) ("The
Commission has regularly held that, in the absence of other
mitigating factors, suspension of benefits for refusal of medical
or physical rehabilitation training services will continue until
a claimant actually meets with a physician or counselor and cures
a refusal.").
3
Employer also contends the commission erred in relying on an
unreported decision, Bane v. Rosslyn Concrete Constr. Co., No.
2598-92-4, 1994 WL 43332 (Va. Ct. App. Feb. 15, 1994). See Code
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Affirmed.
§ 17.1-413(A), recodifying § 17-116.010(A). Although an
unpublished opinion of the Court has no precedential value, see
Grajales v. Commonwealth, 4 Va. App. 1, 2 n.1, 353 S.E.2d 789,
790 n.1 (1987), a court or the commission does not err by
considering the rationale and adopting it to the extent it is
persuasive. Accordingly, the commission did not err in
considering our decision in Bane.
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Coleman, J., with whom Bray and Lemons, JJ., join, dissenting.
Code § 65.2-603, which requires an employer to provide
necessary medical attention to an employee injured in an
industrial accident, also provides that when the employee
unjustifiably refuses to accept such medical services the
employee shall be barred "from further compensation until such
refusal ceases and no compensation shall at any time be paid for
the period of suspension." Code § 65.2-603(B). The medical
attention that is necessary to restore an employee's good health
is part of the compensation to which an injured employee is
entitled but it also serves the desirable purpose for both the
employee and employer of enabling the employee to return to
useful employment when reasonably possible. Richmond Mem. Hosp.
v. Allen, 3 Va. App. 314, 318, 349 S.E.2d 419, 422 (1986).
An injured employee, who is entitled to compensation
benefits from his employer, including medical benefits, may not
elect to remain disabled at the expense of his or her employer
when reasonable medical treatment would cure or correct the
disability and enable the person to become a productive employee.
See Davis v. Brown & Williamson Tobacco Co., 3 Va. App. 123, 348
S.E.2d 420 (1986) (holding that the "unjustified refusal"
provision is "to penalize" employees who unjustifiably refuse
reasonable and necessary medical attention). Here, the
commission held on November 7, 1993, that Ellen Rose
unjustifiably refused medical treatment by refusing to have disc
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surgery recommended by her attending physician which, according
to his opinion, would correct her work-related disability.
Accordingly, the commission suspended Ellen Rose's benefits and
that decision has been final and binding and remained in effect
since November 7, 1993.
On November 6, 1995, the day before Ellen Rose's claim for
further benefits would have been barred by Code § 65.2-708, she
filed a change of condition application stating that she was now
willing to have the corrective disc surgery. In support of her
application she proved that her counsel had sent a letter to
employer's counsel stating that Ms. Rose was willing to undergo
the lumbar surgery and requesting that they confer to arrange an
appointment with her treating physician, Dr. Pruess. Rose
contends, and the majority has held, that her stated willingness
to have the surgery cured her unjustified refusal and that
compensation benefits, which had been suspended for two years,
should be reinstated. The commission found that Ellen Rose's
stated willingness to undergo the surgery was a "verbal cure" of
her unjustified refusal and that the two appointments that she
arranged with Dr. Pruess were affirmative acts that corroborated
her good faith. The majority of this Court holds that credible
evidence supports that finding.
I disagree with that holding. The affirmative acts upon
which both the commission and this Court rely to prove that Ellen
Rose's stated willingness to have surgery was bona fide were two
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appointments she had with Dr. Pruess. However, what is
significant about the two appointments with Dr. Pruess is, as his
deposition establishes, that Ellen Rose did not and does not
intend to have the surgery which would correct her work-related
disability but rather intends to live with the pain. In my
opinion, the majority errs by merely considering the fact that
Rose made appointments with Dr. Pruess as affirmative acts
proving her good faith, without considering what transpired at
the appointments. Because Dr. Pruess's deposition proves
unequivocally that Rose did not schedule surgery and does not
intend to have surgery, but rather intends to live with the pain,
no credible evidence proves that Rose had a bona fide willingness
to have surgery. Because I would find that no credible evidence
supports the commission's finding that Rose cured her unjustified
refusal of medical treatment, I respectfully dissent.
As the majority notes, whether Rose cured her unjustified
refusal is a mixed question of law and fact. See Roanoke Belt,
Inc. v. Mroczkowski, 20 Va. App. 60, 68, 455 S.E.2d 267, 271
(1995). The factual component of the question requires a
determination by the commission of Rose's state of mind and
whether her stated willingness to have surgery was in good faith.
But, we review de novo whether credible evidence exists in the
record to support the commission's finding.
Clearly, the standard of review by this Court is high.
Unless the evidence in the record is insufficient, as a matter of
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law, to sustain her burden of proof that she cured her
unjustified refusal of medical treatment by a good faith
willingness to have the surgery, then the commission's finding is
binding and conclusive. Code § 65.2-706; Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
As previously noted, an injured employee cannot refuse to
accept reasonable medical services that will enable the employee
to return to productive employment. Code § 65.2-603. In order
to cure an unjustified refusal of medical treatment, an employee
must accept the corrective medical treatment and may do so, as
the majority holds, by a "verbal cure" provided the statement
demonstrates a good faith willingness by the employee to accept
the surgery. The majority holds, and I concur with that holding,
that good faith can be shown "through an affirmative action or a
showing of circumstances mitigating the failure to act." For
purposes of this opinion, I accept the commission's finding and
the majority's upholding that Rose's depression and agoraphobia
constituted mitigating circumstances explaining her delay in
contacting Dr. Pruess for further medical treatment. However,
the record is clear, in my opinion, that in order to cure her
unjustified refusal of medical treatment she must be willing to
have disc surgery, and Rose did not and does not intend to have
the corrective surgery. Dr. Preuss's deposition establishes that
although the surgery would improve her symptoms, Rose does not
plan to have the surgery because her condition is "stable" and
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she can tolerate the pain. The fact that surgery may not be a
medical necessity from the doctor's point of view does not
relieve Rose of the responsibility of accepting reasonable
medical treatment that will alleviate these problems that cause
the work-related disability. Although Rose may have other
unrelated emotional or psychological disabilities that prevent
her from returning to her previous employment, she cannot elect
to have her work-related disability go untreated in order to
receive compensation benefits from her employer.
While contacting Dr. Pruess and arranging the belated
appointments with him in February and July could, under some
circumstances, be "affirmative actions" that show good faith,
where the result of those appointments is that surgery was not
scheduled because Rose was willing to "live with the pain" the
evidence fails to prove that she was willing to have surgery.
The question for Rose is not whether surgery is a medical
necessity, but whether surgery is a reasonable treatment that
would correct her disability. It is not sufficient, as the
majority apparently holds, that she is now willing to accept
surgery as a course of treatment merely because she scheduled the
appointments; the result of those "affirmative acts" proved that
Rose continued to elect to live with the pain rather than accept
surgery.
I would reverse the commission's finding and hold that no
credible evidence proves that Rose's "verbal cure" was in good
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faith; to the contrary, the evidence proves she had no intention
to accept the medical treatment.
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