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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