                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Alston and AtLee
              Argued at Richmond, Virginia
UNPUBLISHED




              DANNY LEE GRIZZARD
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0986-17-3                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                 MARCH 13, 2018
              SONNY’S AUTOMOTIVE RACING, INC. AND
               SENTRY INSURANCE A MUTUAL COMPANY


                           FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Monica Taylor Monday (Matthew W. Broughton; Andrew
                               Finnicum; Robert E. Evans; Gentry Locke, on briefs), for
                               appellant.

                               Jesse Narron (Jonas A. Callis; K. Elizabeth Kendall; PennStuart,
                               on brief), for appellees.


                     Danny Lee Grizzard appeals a decision of the Commission holding that an existing award

              order permitted Sonny’s Automotive Racing, Inc. and its insurer, Sentry Insurance Company

              (collectively, “employer”), to terminate attendant care benefits without seeking prior approval

              from the Commission. For the following reasons, we affirm.

                                                        I. BACKGROUND

                     On appeal of Commission decisions, “the evidence and all reasonable inferences that may

              be drawn from that evidence are viewed in the light most favorable to the party prevailing

              below.” UPS v. Prince, 63 Va. App. 702, 704, 762 S.E.2d 800, 801 (2014) (quoting Snyder v.

              City of Richmond Police Dep’t, 62 Va. App. 405, 408, 748 S.E.2d 650, 652 (2013)). So viewed,

              the evidence showed that in 2009, while working for Sonny’s Automotive Racing, Grizzard



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
sustained a serious injury that resulted in “a naso-orbitoethmoid fracture, a left orbital rim

fracture, a left orbital floor fracture, a traumatic optic injury left eye, a vitreous injury to the right

eye and a nondepressed fracture to the forehead.” These physical injuries left him mostly blind

and with various neurological issues from traumatic brain injury.

        Based on agreement between the parties, the Commission entered an order in 2009

awarding Grizzard temporary total disability benefits and medical benefits. In 2011, also with

the parties’ agreement, the Commission entered another stipulated order providing Grizzard with

full-time “attendant care as provided by Section 65.2-603 of the Virginia Worker’s

Compensation Act until conditions justify a change in this care.” At that time, the parties further

stipulated that Grizzard’s wife would provide that care and that employer would pay $1,680 a

week to cover the value of her doing so.

        In December 2015, employer requested an Independent Medical Examination (“IME”) of

Grizzard to determine if his condition still required full-time care. The examining doctor

concluded Grizzard no longer required 24-hour attendant care. The IME noted that Grizzard’s

mood and cognition had improved since the last exam with the same physician in January 2013.

In concluding that Grizzard at most needed companion care for driving and other tasks, the

doctor noted that “most legally blind patients do not require continuous attendant care unless

they have other disabilities such as paralysis,” and that Grizzard stated he was able to navigate

his property and immediate surroundings without assistance. Given this opinion, employer

ceased paying attendant care benefits in January 2016.1 Grizzard filed a motion for show cause,

alleging that employer violated the 2011 order by ceasing payments for attendant care.

        In January 2017, a deputy commissioner ruled that the language from the 2011 order

required employer to seek approval from the Commission before ceasing to pay attendant care


        1
            Employer continued to pay Grizzard’s other benefits.
                                               -2-
benefits, but denied Grizzard’s requests for attorneys’ fees and costs because employer had

reasonable grounds for defending its actions. On review, the full Commission affirmed in part

and reversed in part. It held that the language in the 2011 stipulated order did not require

employer to seek prior approval from the Commission before discontinuing payment of attendant

care benefits, and the deputy commissioner erred in so finding. It affirmed the deputy

commissioner’s ruling that neither party owed the other attorneys’ fees or costs.

                                             II. ANALYSIS

       Grizzard’s first four assignments of error, and the core issue in this appeal, concern the

Commission’s ruling that the 2011 order’s language, providing that payment for attendant care

would continue “until conditions justify a change,” permitted employer to discontinue those

payments without first seeking the Commission’s approval or agreement between the parties.2



       2
           Grizzard’s first four assignments of error state:

                 1. The . . . Commission erred in finding that the Employer did not
                 need to seek the Commission’s approval and/or file an application
                 for hearing in order to terminate attendant care benefits required
                 by, and paid pursuant to, the Commission’s December 1, 2011,
                 Stipulated Order.

                 2. The . . . Commission erred in finding that the language of the
                 December 1, 2011, Stipulated Order – particularly the language
                 “until conditions justify a change” – permitted the Employer to
                 unilaterally discontinue paying the attendant care benefits required
                 by that Stipulated Order.

                 3. The . . . Commission erred in finding that there was no
                 provision under the Act to suspend or terminate a claimant’s
                 attendant care award order, and that the December 1, 2011,
                 Stipulated Order did not impose an obligation upon the Employer
                 that was different from any obligation under Virginia Code
                 § 65.2-603.

                 4. The . . . Commission erred in denying [Grizzard]’s Motion for
                 Reconsideration.

                                                  -3-
His fifth and sixth assignments of error concern the Commission’s denial of his motion for

attorneys’ fees and costs.3

       As the recipient of medical benefits (which, per the parties’ agreement, includes attendant

care benefits), Grizzard bears the burden to prove ongoing entitlement to those benefits. See

Portsmouth (City of) Sch. Bd. v. Harris, 58 Va. App. 556, 563, 712 S.E.2d 23, 26 (2011), accord

Code § 65.2-603. The parties agreed that employer would pay attendant care benefits “until

conditions justify a change,” and this language was memorialized in the Commission’s 2011

stipulated order. The parties now disagree over whether this stipulation controls modification or

termination of attendant care benefits.

       Because the Commission incorporated this stipulation into the 2011 order, here, the

Commission “was, in effect, construing the scope of its own order.” Bajgain v. Bajgain, 64

Va. App. 439, 452-53, 769 S.E.2d 267, 273 (2015). Accordingly, “we ‘give deference to the

interpretation adopted by the [Commission]’ of its own order.” Id. at 453, 769 S.E.2d at 273

(quoting Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260

(1999) (en banc)). The Commission’s “interpretation, however, must be reasonable, and we will

‘apply an abuse of discretion standard.’” Id. (quoting Roe v. Commonwealth, 271 Va. 453, 458,

628 S.E.2d 526, 528 (2006)).



       3
            Grizzard argues that, because of its allegedly erroneous ruling, the Commission erred in
finding that employer’s defense was reasonable, and thus erred in denying Grizzard’s request for
an award of attorneys’ fees and costs pursuant to Code § 65.2-713(A). He also argues the
Commission “should have considered and addressed the deputy commissioner’s discovery ruling
concerning the carrier’s claim file.” As evident from this Court now affirming the Commission’s
opinion in favor of employer, the Commission did not err in finding that employer’s defense was
reasonable, and therefore, Grizzard was not entitled to attorneys’ fees and costs. Furthermore, he
fails to present any principles of law or authorities supporting his final assignment of error, and
thus violates Rule 5A:20(e) (stating, in part, that “[t]he opening brief of appellant shall contain
. . . [t]he standard of review and the argument (including principles of law and authorities)
relating to each assignment of error”). For these reasons, we find no merit in Grizzard’s fifth and
sixth assignments of error.
                                                   -4-
       The 2011 order states the conditions under which attendant care benefits may be

modified or terminated: when “conditions justify a change.” It does not specify how employer

(or Grizzard, or the Commission, for that matter) could modify or terminate that benefit.

Grizzard argues that the order is not ambiguous, but only “silent,” on how attendant care benefits

terminate. We agree that it is silent; however, because that silence makes it equally susceptible

to multiple interpretations, it is ambiguous. See Eure v. Norfolk Shipbuilding & Drydock Corp.,

263 Va. 624, 632, 561 S.E.2d 663, 668 (2002) (“[L]anguage is ambiguous when ‘it may be

understood in more than one way or when it refers to two or more things at the same time.’”

(quoting Granite State Ins. Co. v. Bottoms, 243 Va. 228, 234, 415 S.E.2d 131, 134 (1992)).

       We are sympathetic to Grizzard’s position, given the gravity of his injuries and the risk of

potential hardship that an unexpected reduction in payments can cause. Nevertheless, this

ambiguity could have been avoided. He was party to this agreement and could have insisted

upon more detailed language as to how these benefits may be terminated or modified. Such

language is not unprecedented, and the need for it was foreseeable — parties in prior cases have

included it. For example, in Virginia Polytechnic Institute v. Posada, 47 Va. App. 150, 622

S.E.2d 762 (2005), the parties’ agreement, reflected in a Commission order, stated the payment

of a medical benefit was “continuing until modified by agreement of the parties or Order of the

Commission.” Id. at 155, 622 S.E.2d at 765. By contrast, the stipulated order here stated only

that employer would pay these benefits “until conditions justify a change in this care,” with no

requirement that any change be pursuant to the parties’ agreement or Commission order. Absent

this additional language, we cannot say that the Commission abused its discretion by interpreting




                                               -5-
its own order to mean employer did not need to seek Commission approval before terminating

those benefits.4

       In arguing that employer was required to seek prior approval from the Commission,

Grizzard emphasizes that Code § 65.2-700 states: “All questions arising under this title, if not

settled by agreements of the parties interested therein with the approval of the Commission, shall

be determined by the Commission, except as otherwise herein provided.” Employer argues this

Code section is inapplicable, first, because the Commission did not address it, and second,

because other portions of the article (“otherwise herein provided”) apply. Regardless of whether

this issue is addressed by other portions of the article, this case is settled by the antecedent clause

in Code § 65.2-700, because the question here was “settled by agreements of the parties . . . ,

with the approval of the Commission,” notwithstanding the ambiguity that resulted from the

agreement.

       Finally, we need not address if a statutory mechanism exists by which employer could

file an application with the Commission to terminate a medical benefit, such as attendant care

(the issue raised in Grizzard’s third assignment of error), as this case turns on the language in the

parties’ agreement, as reflected in the Commission’s 2011 order.




       4
           The Commission’s ruling, and thus, this Court’s review, is not concerned with litigating
the factual question of whether Grizzard, in fact, still requires full-time attendant care. Rather,
this appeal presents a procedural question: was the Commission’s interpretation of “until
conditions justify a change” in the 2011 order reasonable? As discussed, this Court concludes it
was. Grizzard did not offer evidence or litigate the issue of whether he still required full-time
attendant care. As employer noted at oral argument, Grizzard is entitled to file a new application
for medical benefits such as attendant care, and it will be awarded if the Commission determines
it is “reasonable, necessary, and related” to the compensable accident. Dunrite Transmission v.
Sheetz, 18 Va. App. 647, 649, 446 S.E.2d 473, 474 (1994).

                                                 -6-
                                         III. CONCLUSION

       The Commission did not err in ruling that the 2011 stipulated order permitted employer

to unilaterally terminate attendant care benefits upon receiving evidence that conditions justified

a change in care, and therefore, payment for that care.

                                                                                         Affirmed.




                                               -7-
