Home / Uncategorized / UNINSURED EMPLOYER'S FUND v. CHILDRESS, et al.


NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.




NOVEMBER 21, 2000

Record No. 1677-00-3

Present: Judges Elder, Bray and Senior Judge







(Mark L. Earley, Attorney General; John J.
Beall, Jr., Senior Assistant Attorney General, on brief), for

(Robert E. Evans, on brief), for appellees.

The Uninsured Employer’s Fund (the Fund)
contends that the Workers’ Compensation Commission erred in
holding it liable for Daryl Clark Childress’s (claimant) medical
expenses incurred for inpatient acute care at Roanoke Memorial
Hospital (RMH) between January 24, 1996 and March 11, 1996. The
Fund contends that such expenses were not "necessary medical
treatment" within the meaning of Code ? 65.2-603. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission’s decision. See Rule 5A:27.

On appeal, we view the evidence in the light
most favorable to the prevailing party below. In addition, the
commission’s factual findings will be upheld if supported by
credible evidence. "However, the question of whether the
disputed medical treatment was necessary within the meaning of
Code ? 65.2-603 is a mixed question of law and fact."
Accordingly, the commission’s conclusions as to the necessity of
the disputed medical treatment are not binding upon this Court.
"However, both the purposes of the Workers’ Compensation Act
and the equities of the situation guide us in affirming the
commission’s award."

Papco Oil Co. v. Farr, 26 Va. App. 66,
73-74, 492 S.E.2d 858, 861 (1997) (citations omitted).

Claimant suffered a traumatic closed head
injury on October 12, 1995, as a result of a compensable
automobile accident. The commission awarded claimant temporary
total disability benefits and lifetime medical benefits. Claimant
received acute care at RMH from October 12, 1995 through March
11, 1996, when he was transferred to a skilled nursing facility.

On August 16, 1999, claimant filed a Claim for
Benefits, alleging that the Fund had paid only part of his RMH
bill for inpatient services rendered between October 12, 1995
through March 11, 1996 and that the Fund owed RMH $30,437.32.

At the hearing on claimant’s claim, the parties
stipulated "that the claimant did not require an acute
inpatient level of care after January 24, 1996, and that he could
thereafter from a medical standpoint been treated at a lower
level of medical service, such as a skilled nursing

In holding the Fund liable for claimant’s
medical expenses incurred at RMH between January 24, 1996 and
March 11, 1996, the commission found as follows:

[Melinda Shelor-]Rogers[, a licensed clinical
social worker assigned to claimant’s case,] testified that she
treated claimant’s case as she would any other patient case. She
worked from January 1996 to March 1996 to place the claimant in a
facility which would accept him and which would be located within
a reasonable distance from the claimant’s family and caregivers.
She submitted documentation of her efforts and explained that
many of the facilities declined the claimant’s case due to the
nature of his injuries, his age, and his lack of funding. When
Medicaid funding came through, Rogers was able to quickly
expedite a transfer to RMH rehab on a trial basis. She continued
to update several other facilities in case the trial period did
not work out.

Rogers also credibly explained that [RMH] did
not have a facility on site to provide the necessary lower-level
of care. Nor could the hospital, as the Fund suggests, simply
supply the claimant with a lesser level of care to reduce the
costs. Although the Carilion nursing facilities were owned by the
same corporation as [RMH], Rogers testified that she could not
force a transfer to these facilities but had to follow the same
procedures as for any other, non-associated facility.

In its role as fact finder, the commission was
entitled to conclude that Rogers’s testimony was credible. Her
testimony supports the commission’s factual findings. Based upon
those findings, the commission held that "the care the
claimant received at [RMH] was ‘necessary medical treatment’
within the meaning of Code ? 65.2-603. In so ruling, the
commission found as follows:

We do not find the six week period it took to
find suitable placement for the claimant unreasonably lengthy.
Nor do we find that [RMH] failed to take necessary steps to place
the claimant more quickly. [RMH] was not equipped to provide the
lesser care the claimant required. Its discharge planner, Rogers,
worked quickly to secure funding, a necessary prerequisite to
placement in a facility, and to find placement for the claimant
which was satisfactory and within a reasonable distance from the
family. [RMH] had a duty to treat the claimant and
. . . Rogers could not have compelled alternate
placement before March 11, 1996, and the hospital could not
simply discharge the claimant, given the grievous nature of his

We note that "Code ? 65.2-603 should
be construed liberally in favor of the claimant, in harmony with
the Act’s humane purpose." Id. at 74, 492 S.E.2d at

Based upon Rogers’s credible testimony
regarding her ongoing efforts to obtain funding and to place
claimant in another facility, the severe nature of claimant’s
injuries, and the lack of evidence of any appropriate and
reasonable alternative to continuing to provide claimant acute
care at RMH, the commission did not err in holding that
claimant’s treatment through March 11, 1996 was "necessary
medical treatment" within the meaning of Code
? 65.2-603. Contrary to the Fund’s contention, the fact
that the claimant "could" have, "from a medical
standpoint," been treated at a lower level of medical
service after January 24, 1996, did not compel the conclusion
that his treatment at RMH through March 11, 1996 was not
"necessary medical treatment" under Code
? 65.2-603.

For these reasons, we affirm the commission’s