Hyatt Place-Chantilly Dulles and Hyatt Corporation v. Virginia Alvarenga

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Humphreys and Russell
Argued at Leesburg, Virginia
UNPUBLISHED

HYATT PLACE-CHANTILLY DULLES AND
HYATT CORPORATION
MEMORANDUM OPINION* BY
v. Record No. 0498-19-4 JUDGE WESLEY G. RUSSELL, JR.
OCTOBER 22, 2019
VIRGINIA ALVARENGA

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Michael S. Bliley (Andrew M. Alexander; Siciliano, Ellis, Dyer &
Boccarosse PLC, on brief), for appellants.

Andrew S. Kasmer for appellee.

Hyatt Place-Chantilly Dulles and Hyatt Corporation (collectively “employer”) appeal the

Commission’s award of benefits to Virginia Alvarenga (“claimant”). Employer asserts that the

Commission erred in concluding that the back surgery and related treatment sought by claimant

“is reasonable, necessary, and causally related to the work accident.” In support of this assertion,

employer argues that “[t]here is no credible evidence to support the Commission’s” conclusion.

We disagree and affirm the judgment of the Commission.

BACKGROUND

On appeal, “[t]his Court must view the evidence in the light most favorable to the

prevailing party before the [C]omission[,]” in this case the claimant. Samartino v. Fairfax Cty.

Fire & Rescue, 64 Va. App. 499, 502-03 (2015). So viewed, the evidence established that in

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
June 2017, claimant was employed as a housekeeper for employer. Her duties included cleaning,

making beds, and lifting and moving forty-pound mattresses.

On June 18, 2017, claimant slipped and fell while cleaning rooms for employer.

According to the first report of incident, she slipped on slippery substances that were on the

floor. That day claimant sought treatment at Patient First. The “COMPLAINT” section of the

Patient First record from the day of the accident indicates that claimant had suffered a “Fall” and

was seeking treatment for her “Back/Neck/[and] L[eft] Arm Pain.” (Emphasis added). Later that

day, she was seen in a local emergency room, where she continued to complain of back, hip, and

shoulder pain.

Throughout the summer and early fall of 2017, claimant continued treating with various

healthcare providers, including Drs. Scott, Iyer, Novak and Sabeet, for the injuries she suffered

in the June 18, 2017 accident. Eventually it was determined that she had suffered a torn left

rotator cuff in the accident, and she had surgery to address the tear.

When claimant sought benefits related to the accident, employer initially accepted the

claim as compensable, and the parties submitted an agreement form to the Commission for

approval. By an award order entered on October 19, 2017, the Commission approved the

agreement of the parties and awarded claimant both temporary total disability benefits and

lifetime medical benefits related to the injuries she suffered. Specifically, the Commission,

consistent with the agreement of the parties, awarded “Lifetime Medical benefits . . . for

reasonable, necessary and authorized medical treatment for the following body parts injured

during the . . . workplace injury of June 18, 2017: head contusion, left shoulder rotator cuff tear,

[and] back strain[.]” (Emphasis added).

On November 20, 2017, employer, by counsel, informed the Commission that employer

no longer consented to the award order and moved to “vacate the award order entered on

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10/19/17.” Consistent with its rules, the Commission granted employer’s request to vacate the

award, and claimant responded by requesting that the Commission place her claim for benefits

and related issues on the hearing docket.

On December 18, 2017, counsel for employer executed on employer’s behalf another

award agreement form, indicating that employer was, once again, accepting the claim. The

award agreement form notes that the “Body Parts/Injuries Accepted” by the employer are as

follows: “head contusion, left shoulder rotator cuff tear, back strain, [and] neck[.]” (Emphasis

added). Counsel for claimant executed the award agreement form on January 18, 2018, and

forwarded it to the Commission.

On February 6, 2018, the Commission approved the latest agreement of the parties and

awarded claimant both temporary total disability benefits and lifetime medical benefits related to

the injuries she suffered. Specifically, the Commission, consistent with the latest agreement of

the parties, awarded “Lifetime Medical benefits . . . for reasonable, necessary and authorized

medical treatment for the following body parts injured during the . . . workplace injury of June

18, 2017: head contusion, left shoulder rotator cuff tear, back strain, [and] neck[.]” (Emphasis

added). As it had done with the initial agreed award, employer again agreed that claimant had

suffered a back injury in the June 18, 2017 accident.

On January 19, 2018, claimant sought treatment from Dr. Ronald Childs to address the

neck and back pain she was experiencing. Dr. Childs’ note references the June 2017 work

accident. As a result of his examination and evaluation of claimant, Dr. Childs prescribed

epidural injections to address claimant’s pain.

Claimant undertook the course of epidural injections as prescribed by Dr. Childs, but the

injections did not relieve her neck and back pain. She returned to Dr. Childs regarding these

symptoms on April 5, 2018. In his note of that date, he states that the claimant “present[ed]

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today for a workman’s comp follow up of cervical pain and injury sustained in June 2017 after a

fall” and that, despite the injections, “her pain remains unchanged and is localized in the neck

and the back.” Based on his examination and evaluation of claimant, Dr. Childs recommended

that claimant undergo back surgery, specifically a “transforaminal lumbar laminectomy and

interbody fusion at L5-S1[.]” He concluded that the work accident had exacerbated a

pre-existing condition.

Employer declined to pay for the recommended surgery. Accordingly, on May 8, 2018,

claimant filed a claim with the Commission seeking “[a]uthorization for back surgery” and

authorization for continued treatment with Dr. Childs.

In its attempt to demonstrate that the requested surgery and continued treatment were

neither reasonable, necessary nor causally related to the work accident, employer sent Dr. Childs

a July 19, 2018 letter (hereinafter “questionnaire”) containing historical information about

claimant and sought responses to certain questions. In the questionnaire, employer informed

Dr. Childs that claimant had been involved in three motor vehicle accidents and three

work-related accidents between July 1998 and March 2010 and that she had suffered injuries to

her neck, right arm, right shoulder, and back in these accidents. In addition, the questionnaire

stated as fact employer’s view that, at the time of the June 18, 2017 accident, claimant’s “only

complaints involved the L[eft] shoulder. She expressed no complaints of any other body parts

(neck or back) until she was returned to work.” The questionnaire continued by noting that,

when employer had authorized the initial treatment session with Dr. Childs, it “was not aware of

[claimant’s] extensive history of MVA and workplace injuries” and that, as a result of learning

about that history, employer had “considerable concerns that her current symptoms are not

related to the June 18, 2017 incident.”

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 Having provided Dr. Childs with what it viewed as the appropriate history, employer then

asked Dr. Childs to answer multiple questions in light of “this new history[.]” The questions

included whether the current issues related to the June 18, 2017 accident, whether claimant had

back and neck issues that pre-existed the June 18, 2017 accident, whether any pre-existing issues

were “degenerative in nature,” and whether she had reached maximum medical improvement.

In undated responses handwritten on the questionnaire he was sent, Dr. Childs provided

responses to the questions.1 Most pertinent to this appeal was his answer to the first question:

“Are current issues/complaints related to the 6/18/17 accident?” Dr. Childs responded, “By

history-no.”

In addition to Dr. Childs’ response to the questionnaire, employer obtained a September

10, 2018 Independent Medical Examination of claimant by Dr. Dhruv Pateder. Dr. Pateder, who

had not treated claimant previously, conducted a seven-minute examination of claimant. In his

report of that examination, not only did Dr. Pateder conclude that the requested surgery was

unnecessary and unrelated to the June 18, 2017 work accident, but also he opined that claimant

“did not sustain any injury whatsoever to the neck or low back as it relates to the work accident

of 06/18/17.” Although he acknowledged that claimant “had some initial complaints of” neck

and back pain after the accident, he stated his belief that, after some initial treatments, “she had

no further complaints of neck or low back pain.” He went on to attribute her current back or

neck symptoms to prior accidents/pre-existing conditions, stating that any such problems were

not “exacerbated by the work accident.” He concluded by opining that claimant had reached

1
Although Dr. Childs’ response was undated, the questionnaire itself was dated July 19,
2018. Employer did not timely provide a copy to claimant’s counsel. Claimant’s counsel first
became aware of Dr. Childs’ response when he checked his office fax machine the morning of
October 4, 2018, the day of the hearing before the deputy commissioner. At the hearing, counsel
for employer acknowledged that the information should have been provided to opposing counsel
earlier, but offered no reason for the failure to provide the information in a timely fashion.
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“maximum medical improvement[,]” did “not need any further care whatsoever[,]” and could

“return to her regular duty job.”

A hearing on claimant’s request for authorization for back surgery and continued

treatment with Dr. Childs was held before a deputy commissioner on October 4, 2018.2

Regarding whether the surgery and further requested treatment were medically necessary and

causally related to the June 18, 2017 work accident, claimant relied upon the opinion

documented in Dr. Childs’ April 5, 2018 treatment note and the opinion of Dr. Sabeet, a treating

physician who also had recommended back surgery. Regarding any suggestion that claimant had

not suffered a back injury on June 18, 2017, claimant relied upon the medical opinions and the

Commission’s prior order, entered with the agreement of employer, that conclusively established

that claimant had suffered a back injury in the June 18, 2017 work accident.

Employer defended the claim by relying on Dr. Childs’ response to the questionnaire, the

opinion of Dr. Pateder, and an answer that claimant gave while testifying at the hearing.

Claimant, whose command of English is such that she testified through the use of an interpreter,

answered in the affirmative when asked if she first “reported” back pain when she saw

Dr. Sabeet in 2017.3

The deputy commissioner concluded that the requested back surgery was “reasonable,

necessary and causally related to the accident of June 18, 2017.” In doing so, the deputy

2
That hearing also addressed employer’s May 2, 2018 application seeking termination of
claimant’s outstanding wage award in light of her return to light-duty work in May 2018 and
claimant’s September 28, 2018 application seeking payment of partial wage loss benefits from
May 2, 2018 forward. The resolution of these respective applications is not the subject of this
appeal; therefore, we do not address them here.
3
We note that, at the hearing, claimant was asked when she first “reported” back pain,
not when she first experienced it. The medical records demonstrate that she reported back pain
on multiple occasions before her first visit with Dr. Sabeet. Furthermore, the Commission’s
February 6, 2018 order conclusively established that claimant injured her back in the June 18,
2017 workplace accident.
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commissioner gave significant weight to the opinions of Dr. Childs as expressed in his April 5,

2018 treatment note that the surgery was necessary and was the result of the accident

exacerbating a pre-existing condition.

In reaching this conclusion, the deputy commissioner rejected the contrary opinions of

Dr. Pateder and Dr. Childs as expressed in his undated response to the questionnaire. Regarding

Dr. Pateder’s opinion, the deputy commissioner found that it was “premised on inaccurate and

incomplete information” and specifically noted that Dr. Pateder’s conclusion that claimant did

not suffer a neck and back injury in the work accident “is in direct conflict with the

Commission’s [previous] award of medical benefits for the neck and back” injury suffered in the

June 18, 2017 work accident. The deputy commissioner went on to note that there was no

indication that “Dr. Pateder considered or was even aware of” relevant information regarding

claimant’s ability to work prior to the June 18, 2017 accident. As a result, the deputy

commissioner afforded Dr. Pateder’s opinion “little probative weight[.]”

The deputy commissioner similarly discounted Dr. Childs’ response to the questionnaire.

Specifically, the deputy commissioner did

not find Dr. Childs’ questionnaire response [to be] reliable.
Dr. Childs was informed of the claimant’s prior accidents, but he
was not provided with any medical records for her treatment
following those accidents. More importantly, Dr. Childs was
misinformed about the claimant’s complaints following the subject
work accident. As noted above, Dr. Childs was told the claimant
had not complained about her back and that her only complaint at
that time related to the left shoulder. This in inaccurate. The June
18, 2017 office note from Patient First shows the claimant’s
symptoms after the accident included neck and back pain.

Employer appealed the decision of the deputy commissioner to the full Commission,

which unanimously affirmed the decision of the deputy commissioner. In coming to its decision,

the Commission gave the most weight to Dr. Childs’ opinion as expressed in his treatment note

regarding the visit of April 5, 2018.
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 The Commission did not give credence to Dr. Childs’ questionnaire response. Like the

deputy commissioner, the Commission found the response was “based upon an inaccurate

history as provided by [employer] and is entitled to little weight.” Furthermore, the Commission

rejected employer’s argument that claimant had not complained of back pain initially,

recognizing that this argument was inconsistent with the initial treatment record from Patient

First and, ironically, was contradicted by Dr. Pateder’s review of the records, which revealed that

claimant had complained of back pain on the day of the accident.

The Commission also was unpersuaded by the relevant opinions offered in Dr. Pateder’s

IME report. The Commission noted that Dr. Pateder’s report assumed that “claimant did not

sustain an injury to her low back” on June 18, 2017, and that such an assumption was

inconsistent with the Commission’s previously entered order that conclusively established that

claimant had, in fact, suffered a back injury in the workplace accident. The Commission went on

to state that “[r]egardless” of Dr. Pateder’s error, the opinion expressed in Dr. Childs’ April 5,

2018 treatment note that the surgery was necessary and related to the work accident “deserves

the most weight.”

Employer now appeals to this Court. In its sole assignment of error, it asserts that there

was “no credible evidence to support the Commission’s determination that the proposed surgery

is reasonable, necessary and causally related to the work accident.”

ANALYSIS

I. Standard of Review

In essence, employer argues that the evidence was insufficient to allow the Commission

to conclude “that the proposed surgery is reasonable, necessary and causally related to the work

accident.” As such, employer necessarily challenges the factual and credibility determinations of

the Commission.

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 Decisions of the Commission “shall be conclusive and binding as to all questions of

fact.” Code § 65.2-706. Virginia’s appellate courts “do not retry the facts before the

Commission nor do we review the weight, preponderance of the evidence, or the credibility of

witnesses.” Jeffreys v. Uninsured Emp’r’s Fund, 297 Va. 82, 87 (2019) (quoting Caskey v. Dan

River Mills, Inc., 225 Va. 405, 411 (1983)). Thus, factual determinations made by the

Commission will be disturbed on appeal only if “plainly wrong or [they lack] credible evidence

to support them.” Turner Gilbane JV v. Guzman, 59 Va. App. 128, 133 (2011) (quoting Georgia

Pac. Corp. v. Dancy, 17 Va. App. 128, 135 (1993)).4

II. An Employer’s Obligation to Pay for Medical Treatment

Once an award of lifetime medical benefits is entered for a particular injury, an employer

is obligated to pay for any treatment that is authorized,5 reasonable, necessary, and causally

related to the work accident. Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199-200

(1985); see also Code § 65.2-603(A)(1) (“As long as necessary after an accident, the employer

4
We have recognized that a challenge to the medical necessity of a particular treatment
represents a mixed question of law and fact entitled to de novo appellate review. See, e.g.,
Portsmouth Sch. Bd. v. Harris, 58 Va. App. 556 (2011). In Harris, a treating physician issued “a
non-specific, generalized and generic physician’s prescription for treatment” in a spa pool. Id. at
562. The claimant sought to have the employer reimburse him for his purchase of a home hot
tub capable of seating six people. Id. at 560-61. He did so even though the doctor’s
“prescription did not call for a ‘home’ spa pool, nor did it call for a spa pool capable of seating
six people. In other words, [the doctor] never prescribed this specific appliance.” Id. at 566.
Finding that whether the spa pool claimant purchased was within the scope of the doctor’s
prescription presented a mixed question of law and fact, we concluded that “the [C]ommission’s
findings in this case as to the necessity of the claimant’s purchase of a home spa pool are not
binding upon this Court.” Id. at 563-64. The instant case presents no such issue as to the scope
of the prescribed treatment. Although employer challenges the necessity of any surgery at all, it
does not assert that the surgery claimant seeks in any way exceeds the scope of what was
recommended by Dr. Childs in his April 5, 2018 treatment note.
5
There are circumstances in which a claimant may be entitled to reimbursement for
unauthorized medical treatment that proves to be reasonable, necessary, and causally related to a
work accident. See Yahner v. Fire-X Corp., 70 Va. App. 265, 278 (2019). Given the
Commission’s conclusion that the surgery at issue was recommended by Dr. Childs, an
authorized treating physician, the requested surgery in this case is “authorized.”
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shall furnish or cause to be furnished, free of charge to the injured employee, a physician chosen

by the injured employee from a panel of at least three physicians selected by the employer and

such other necessary medical attention.”). Here, consistent with the prior agreement of the

parties and the February 6, 2018 order of the Commission, claimant had been awarded “Lifetime

Medical benefits . . . for reasonable, necessary and authorized medical treatment for the . . . body

parts injured during the” June 18, 2017 work accident. As reflected in the Commission’s

February 6, 2018 order, the parties also agreed that claimant’s back was one of the body parts

injured in the June 18, 2017 work accident. Accordingly, employer was obligated to pay for any

reasonable treatment related to the back injury that was necessitated by the work accident.

It is a claimant’s burden to establish that a proposed course of treatment is reasonable,

necessary, and causally related to the work accident. Haftsavar v. All Am. Carpet & Rugs, Inc.,

59 Va. App. 593, 599 (2012). The question presented by this appeal is whether claimant carried

that burden. Reviewing the evidence and the inferences that reasonably may be drawn from that

evidence in the light most favorable to claimant because she was the prevailing party below,

Anderson v. Anderson, 65 Va. App. 354, 361 (2015), it is clear that she did.

III. Conflicting Evidence Regarding the Surgery

In support of her claim that the surgery was reasonable, claimant relied on opinions given

by not one, but two, treating physicians. Dr. Sabeet, who saw claimant regarding her back and

neck pain on multiple occasions between September 2017 and February 2018, concluded back

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surgery was appropriate to address claimant’s symptoms, which his initial note tied to the work

accident.6

In addition to Dr. Sabeet’s opinion, claimant offered the opinion of her authorized

treating physician, Dr. Childs. In his April 5, 2018 treatment note, Dr. Childs recorded that

claimant was being seen “for a workman’s comp follow up of cervical pain and injury sustained

in June 2017 after a fall” and for “pain [that] remains unchanged and is localized in the neck and

back.” He opined that the symptoms related to the work accident represented an “aggravation of

[a] pre-existing condition.” Having attempted “conservative management” to address the

symptoms, Dr. Childs recommended the back surgery for which claimant eventually sought

authorization.7

Employer countered by offering the IME opinion of Dr. Pateder and Dr. Childs’ response

to the questionnaire. The existence of these contrary opinions created a conflict in the medical

evidence. It is the function of the Commission as factfinder to resolve such conflicts. See, e.g.,

Donovan v. United Parcel Serv., Inc., 63 Va. App. 438, 445 (2014); Georgia-Pac. Corp. v.

Robinson, 32 Va. App. 1, 5 (2000). This principle holds true even when the conflict stems from

inconsistencies in the evidence offered by a single medical witness. Cf. United Airlines, Inc. v.

6
In the history that employer provided Dr. Childs in the July 19, 2018 questionnaire,
employer refers to Dr. Sabeet’s involvement as a course of “unauthorized treatment[.]” This
statement was misleading at best. On April 5, 2018, the Commission entered a “STIPULATED
ORDER” at the request of the parties. The order reflects employer’s agreement “to be
responsible for the treatment incurred with Dr. Sabeet, including the bills from September 28,
2017, through February 2, 2018, in accordance with the Act[.]” Thus, even if the treatment were
unauthorized when it was rendered, it had been accepted and effectively authorized before
employer sent the letter to Dr. Childs on July 19, 2018. At oral argument in this Court, employer
candidly conceded that at the time it sent the questionnaire to Dr. Childs, Dr. Sabeet’s treatment
was authorized.
7
At oral argument in this Court, employer, with commendable candor, conceded that,
standing alone, the opinions of Dr. Sabeet and Dr. Childs, as expressed in his April 5, 2018
treatment note, were sufficient to sustain claimant’s burden to establish that the surgery was
reasonable, necessary, and causally related to the work accident.
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Hayes, 58 Va. App. 220, 243 (2011). Unless such inconsistencies render the evidence inherently

incredible, it remains “within the province of the [C]ommission, as the finder of fact, to

determine” which conflicting medical opinions “to credit . . . and, if so, which aspects of” such

opinions it believes. Id. Absent extraordinary circumstances, such a conflict in the evidence is

nothing more than a credibility contest, and, as noted above, we defer to the Commission’s

credibility determinations. Jeffreys, 297 Va. at 87.

Here, the Commission credited the medical opinions relied upon by claimant and

discounted those offered by employer. In doing so, the Commission explained why it did not

credit employer’s medical evidence. Regarding Dr. Pateder, the Commission noted that his

opinion was premised on his conclusion that claimant “did not sustain any injury to her low

back” in the June 18, 2017 workplace accident. Such a premise, and the resulting conclusion

that flowed from it, is necessarily false because the parties’ prior agreement, memorialized in the

Commission’s February 6, 2018 order, conclusively established that claimant had, in fact,

suffered a back injury in the workplace accident.8 As a result, the Commission reasonably

discounted Dr. Pateder’s opinion. See Sneed v. Morengo, Inc., 19 Va. App. 199, 205 (1994)

(“Whenever a physician’s diagnosis flows from an assumption that rests upon a faulty premise

. . . , the [C]ommission may refuse, and often will be required to refuse, to attribute any weight to

that opinion.”).

Regarding Dr. Childs’ response to the questionnaire, the Commission found that it was

“entitled to little weight,” and thus, did not offset the opinion that Dr. Childs had rendered in his

8
This is not to suggest that employer could not challenge the need for this particular
surgery or argue that the surgery, to the extent it was needed, was unrelated to the back injury
suffered in the June 18, 2017 workplace accident. What employer could not do was attempt to
relitigate the question of whether or not claimant had suffered a back injury in the workplace
accident because that issue had been resolved conclusively by the Commission’s prior order.
See generally Brock v. Voith Siemens Hydro Power Generation, 59 Va. App. 39 (2011) (holding
that final orders of the Commission are entitled to preclusive effect).
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April 5, 2018 treatment note. Although the questionnaire may have provided Dr. Childs with

additional information about claimant’s prior work and motor vehicle accidents, the Commission

discounted the response because employer had provided “an inaccurate history” to Dr. Childs.

At oral argument in this Court, employer candidly conceded that there were multiple aspects of

the history it provided to Dr. Childs in the questionnaire that were inaccurate, including the

statements that, on the day of the accident, claimant’s “only complaints involved the L[eft]

shoulder” and that claimant “expressed no complaints of any other body parts (neck or back)

until she was returned to work.” To the extent that it concluded that Dr. Childs’ response to the

questionnaire was affected by the inaccurate history provided by employer, the Commission was

free to reject the conclusion expressed. Sneed, 19 Va. App. at 205.

There was ample reason for the Commission to conclude that Dr. Childs’ “new” opinion

expressed in response to the questionnaire was tied to the inaccurate history provided by the

employer. Dr. Childs provided his handwritten answers to the questions on the face of the

questionnaire itself, with his responses appearing next to the questions, which, in turn, were

directly below the inaccurate history. Furthermore, Dr. Childs’ answer to the question of

whether the back problems for which surgery was recommended was related to the work

accident strongly suggests that the history provided by employer played a role in his “new”

opinion. Specifically, he responded, “By history- no.” (Emphasis added). The Commission

reasonably could conclude that Dr. Childs’ response to the questionnaire was based upon the

inaccurate history provided by employer, and thus, the Commission did not err in “refus[ing] to

attribute any weight to that opinion.” Sneed, 19 Va. App. at 205.

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 Claimant offered sufficient medical evidence to establish that the requested surgery was

reasonable, necessary, and causally related to the work accident.9 The Commission, as

factfinder, permissibly credited that evidence and rejected the conflicting evidence.

Accordingly, the Commission did not err in concluding that employer was obligated to pay for

the requested surgery and related treatment with Dr. Childs.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Commission.

Affirmed.

9
In an ironic twist, employer argues that the Commission was required to reject the
opinion of Dr. Childs that was set forth in his April 5, 2018 treatment note because, according to
employer, it was based on a faulty premise. Employer asserts that the opinion was based on the
mistaken belief that claimant “suffered from persistent back pain from the date of the accident.”
Based on the medical evidence in the record and the reasonable inferences drawn therefrom, the
Commission reasonably found that “[t]he claimant’s symptoms [of back pain] were . . . recorded
as persistent by Drs. Sabeet and Childs” throughout their care and treatment of her. Accordingly,
the Commission did not err in concluding that the opinion of Dr. Childs as reflected in his April
5, 2018 treatment note was not “based upon a faulty premise.”
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