                               COURT OF APPEALS OF VIRGINIA


Present: Judges Petty, Beales, and Senior Judge Coleman
Argued at Richmond, Virginia


LYDIA C. HAYES
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1600-10-2                                  JUDGE RANDOLPH A. BEALES
                                                                   MARCH 8, 2011
PERREL MANAGEMENT COMPANY, INC. AND
 AMCOMP EMPLOYERS PREFERRED INSURANCE COMPANY

PERREL MANAGEMENT COMPANY, INC. AND
 AMCOMP EMPLOYERS PREFERRED INSURANCE COMPANY

v.     Record No. 1633-10-2

LYDIA C. HAYES


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Ruth S. Norrell for Lydia C. Hayes.

                 Adam Rafal (Vandeventer Black LLP, on briefs), for Perrel
                 Management Company, Inc. and AMCOMP Employers Preferred
                 Insurance Company. 1


       Lydia C. Hayes appeals the decision of the Virginia Workers’ Compensation

Commission (commission) to terminate her award of total temporary disability compensation

(Record No. 1600-10-2). Her employer 2 appeals the commission’s decision authorizing Hayes a




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Perrel Management Company, Inc. and AMCOMP Employers Preferred Insurance
Company did not participate during the oral argument pertaining to Record No. 1600-10-2, but
instead relied on the brief filed in this Court.
       2
      We use the term “employer” to include both the employer, Perrel Management
Company, Inc. and its insurer, AMCOMP Employers Preferred Insurance Company.
new treating physician for compensable medical treatment (Record No. 1633-10-2). For the

following reasons, we affirm the commission’s decision in both cases.

                                           I. BACKGROUND

          On June 19, 2007, Hayes suffered a tear in the posterior tibial tendon of her right foot

while performing her duties as a housekeeping supervisor for employer. Employer agreed that

this injury was compensable. Hayes was awarded temporary total disability compensation and

lifetime medical benefits for treatment relating to this injury.

          Dr. Joseph Bava of Atlantic Foot & Ankle Center (Atlantic) surgically repaired Hayes’s

posterior tibial tendon on August 13, 2007. Hayes’s treatment with Atlantic continued through

September 2008 – first under Dr. Bava, who left the Atlantic practice in July 2008, and then

under Dr. Michael Rayno. Dr. Bava’s notes reflect continued improvement in Hayes’s posterior

tibial tendon following the surgery, although Dr. Bava still treated Hayes for pain related to this

injury.

          On July 16, 2008, Dr. Bava noted for the first time that Hayes felt “marked pain along the

outer side of the right foot” near the peroneal tendon, and he ordered an MRI “to assess the

lateral aspect” of that foot. After reviewing the MRI report and evaluating Hayes on July 31,

2008, Dr. Rayno confirmed that Hayes’s peroneal tendon was partially torn. Although he could

not identify a specific cause of this injury, Dr. Rayno did not believe that the tear to the peroneal

tendon resulted from Hayes’s physical therapy for the posterior tibial tendon injury. Dr. Rayno

noted that there was no swelling “on her right medial foot where she has had the previous repair

of her tibialis posterior tendon.”

          On September 4, 2008, Dr. Rayno concluded that Hayes would “most likely” need

surgery to repair her peroneal tendon. However, employer denied coverage for surgery to

Hayes’s peroneal tendon, asserting that this procedure was not related to her compensable injury

                                              -2-
to the posterior tibial tendon. According to Hayes, employer also denied coverage for any

further treatment by Dr. Rayno. Therefore, she scheduled no further appointments with

Dr. Rayno or any other physician at Atlantic.

       Dr. Steven Blasdell, an independent medical examiner, concluded that Hayes’s injury to

her peroneal tendon was unrelated to the posterior tibial tendon injury. Dr. Blasdell concluded

that Hayes had reached maximum medical improvement with respect to her posterior tibial

tendon injury and that no further treatment was necessary for that injury.

       Dr. Rayno agreed with Dr. Blasdell’s conclusions in a January 2, 2009 letter to

employer’s counsel. Dr. Rayno found no “clear indication that the current problem, which is the

peroneal tendon injury[,] has any relation to the initial injury of June 2007,” which was to the

posterior tibial tendon. Dr. Rayno also stated that Hayes “did actually at some point reach

maximum medical improvement in regards to the posterior tibial injury, which was the original

injury in question.”

       Dr. Rayno reiterated these opinions in a June 3, 2009 response to a questionnaire from

employer. Dr. Rayno responded affirmatively when asked whether Hayes was “able to return to

full, unrestricted duty with respect to her posterior tibial tendon injury.”

       Without employer’s approval, Hayes sought a second opinion from Dr. Alexandra Dale.

Dr. Dale concluded that Hayes had “[c]ontinued pain status post a posterior tibial tendon tear

from a work related injury in 2007.” Dr. Dale did not express any opinion on whether Hayes

remained disabled by this injury.




                                             -3-
       Hayes and employer both filed applications for relief in the commission. 3 Following a

hearing, a deputy commissioner found that Hayes was no longer eligible for temporary total

disability compensation based on Dr. Rayno’s opinion that Hayes was cleared for “full,

unrestricted duty” with respect to her compensable posterior tibial tendon injury. In addition, the

deputy commissioner found that Hayes was authorized to receive treatment from Dr. Dale for

any ongoing pain related to her compensable injury.

       On review, the commission affirmed the deputy commissioner’s finding that Hayes was

not entitled to further temporary total disability compensation. The commission credited

Dr. Rayno’s opinion that Hayes’s peroneal tendon injury was unrelated to her compensable

posterior tibial tendon injury, explaining, “Although Dr. Rayno had not seen the claimant since

September 2008 when he answered the June 2009 questionnaire, his opinion about causation of

the peroneal tendon injury was consistent beginning in July 2008.” Moreover, the commission

credited Dr. Rayno’s opinion that Hayes’s posterior tibial tendon had reached maximum medical

improvement and that she was released for “full, unrestricted duty” with respect to this injury.

       A majority of the commission, with one commissioner dissenting, also affirmed the

deputy commissioner’s finding that Hayes was authorized to see Dr. Dale for continued medical

treatment related to her compensable posterior tibial tendon injury. Although it had relied on

Dr. Rayno’s opinion that Hayes’s posterior tibial tendon had reached maximum medical

improvement, the commission noted that this finding “does not equate to a statement that no

further treatment of any kind is necessary for the ongoing pain symptoms” related to her

compensable injury. The commission credited Dr. Dale’s opinion that Hayes still experienced



       3
          Hayes sought “continued medical benefits and an order recognizing Dr. Dale as her new
treating physician.” Employer sought “to terminate the award of compensation for temporary
total disability on the grounds that the claimant had been released to return to her pre-injury work
by Dr. Rayno as of June 3, 2009.”
                                             -4-
ongoing pain related to this injury. The commission found that Hayes “has shown that she

reasonably believed that the insurer was denying all care” from Dr. Rayno, and, therefore, it

found that she was authorized to seek medical treatment for pain related to her compensable

posterior tibial tendon injury from Dr. Dale.

                                          II. ANALYSIS

       On appeal from the commission, this Court reviews the facts in the light most favorable

to the party prevailing in the commission. Apple Constr. Corp. v. Sexton, 44 Va. App. 458, 460,

605 S.E.2d 351, 352 (2004). “[W]e must defer to the commission’s findings of fact if supported

by credible evidence in the record.” Diaz v. Wilderness Resort Ass’n, 56 Va. App. 104, 114, 691

S.E.2d 517, 522 (2010). “‘In determining whether credible evidence exists, the appellate court

does not retry the facts, reweigh the preponderance of the evidence, or make its own

determination of the credibility of the witnesses.’” Pruden v. Plasser Am. Corp., 45 Va. App.

566, 574-75, 612 S.E.2d 738, 742 (2005) (quoting Wagner Enters. v. Brooks, 12 Va. App. 890,

894, 407 S.E.2d 32, 35 (1991)).

                  A. TEMPORARY TOTAL DISABILITY (RECORD NO. 1600-10-2)

       Hayes argues that the commission erred when it found that she was no longer entitled to

temporary total disability compensation. Although Hayes raises three separate assignments of

error, these assignments of error all relate to whether the commission was plainly wrong when it

found that the injury to her peroneal tendon was not causally related to the compensable injury to

her posterior tibial tendon that occurred on June 19, 2007.

       The commission’s “determination regarding causation is a finding of fact,” Farmington

Country Club v. Marshall, 47 Va. App. 15, 26, 622 S.E.2d 233, 239 (2005), which is binding on

this Court if supported by credible evidence in the record below, see Wagner Enters., 12Va. App.

at 894, 407 S.E.2d at 35. In this case, the commission relied on Dr. Rayno’s opinion that the

                                           -5-
injury to Hayes’s peroneal tendon was not related to the compensable injury to her posterior

tibial tendon. Hayes contends that the commission should not have relied on Dr. Rayno’s

opinion because he last treated Hayes in September 2008 – more than a year prior to the

evidentiary hearing before the deputy commissioner. Hayes also suggests that Dr. Rayno’s

opinion was not credible because he allegedly “changed his opinion” on causation after employer

decided not to cover the surgery to repair her peroneal tendon.

       “[T]he probative weight to be accorded [medical] evidence is for the Commission to

decide” in its role as factfinder, and if a portion of the medical evidence “is in conflict with other

medical evidence, the Commission is free to adopt that view which is most consistent with

reason and justice.” Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 269

(2000). As the commission noted, Dr. Rayno examined Hayes’s compensable posterior tibial

tendon injury and her subsequent peroneal tendon injury in his capacity as Hayes’s treating

physician. See Bassett Burkeville Veneer v. Slaughter, 21 Va. App. 575, 580, 466 S.E.2d 127,

129 (1996) (explaining that “great weight should be given to the evidence of an attending

physician”). In Dr. Rayno’s opinion, the peroneal tendon injury was not related to the posterior

tibial tendon injury. The commission specifically rejected Hayes’s suggestion that Dr. Rayno

“changed his opinion” on this issue after employer denied coverage for the peroneal tendon

surgery – noting that Dr. Rayno’s opinion has been consistent since July 30, 2008, which was

before Dr. Rayno thought surgery on the peroneal tendon was even necessary. In addition,

Dr. Rayno’s opinion was corroborated by Dr. Blasdell’s findings. Based on this record, the

commission was certainly entitled to rely upon Dr. Rayno’s opinion that the peroneal tendon

injury was not related to the compensable posterior tibial tendon injury. 4


       4
         To the extent that the notes of Dr. Dale’s examination of Hayes support the opposite
conclusion, the commission was not plainly wrong in declining to rely on those notes. Dr. Dale
noted that Hayes complained of lateral ankle pain, which “was felt to be due to peroneal
                                            -6-
       Similarly, the commission was entitled to rely on Dr. Rayno’s opinion that Hayes’s

compensable posterior tibial tendon injury had reached maximum medical improvement and that

she was cleared for “full, unrestricted duty” with respect to that injury. This opinion was also

corroborated by Dr. Blasdell. Therefore, the commission did not err when it found that employer

established that temporary total disability benefits were no longer warranted based on

Dr. Rayno’s opinion that Hayes was able to return to “full, unrestricted duty” with respect to her

compensable posterior tibial tendon injury. See Crystal Oil Co. v. Dotson, 12 Va. App. 1014,

1021, 408 S.E.2d 252, 256 (1991).

       Accordingly, we affirm the commission’s decision to terminate the award of temporary

total disability benefits related to Hayes’s posterior tibial tendon injury.

                 B. AUTHORIZED TREATING PHYSICIAN (RECORD NO. 1633-10-2)

       Employer argues that the commission erred when it authorized Hayes to receive

treatment from Dr. Dale as her new treating physician. We emphasize that the commission’s

decision on this issue concerned only “the ongoing pain symptoms that involve the parts of the

claimant’s foot injured in the June 19, 2007 accident.” Moreover, as we explained supra, the

commission was not plainly wrong in concluding that the partial tear of Hayes’s peroneal tendon

was unrelated to the compensable injury to her posterior tibial tendon. Thus, we consider here

only the medical attention necessary to treat ongoing pain related to Hayes’s compensable injury

to her posterior tibial tendon.



tendinitis, and surgery on the peroneal tendons was recommended. The patient relates that she
has had pain on the lateral side since immediately after surgery that has increased over time.”
(Emphasis added). This notation by Dr. Dale is contradicted by the notes of Dr. Bava, who
performed the surgery to repair Hayes’s posterior tibial tendon surgery in August 2007 and
continued treating Hayes until July 2008. According to Dr. Bava’s notes, Hayes first complained
of pain on the lateral side of her right foot, which would indicate an injury to her peroneal
tendon, in July 2008 – eleven months after the surgery on her posterior tibial tendon.


                                             -7-
       An employer “shall furnish or cause to be furnished” the “necessary medical attention” to

treat its employee’s compensable injury. Code § 65.2-603(A)(1); see H.J. Holz & Son, Inc. v.

Dumas-Thayer, 37 Va. App. 645, 561 S.E.2d 6 (2001). 5 Code § 65.2-603 further provides:

               If in an emergency or on account of the employer’s failure to
               provide the medical care during the period herein specified, or for
               other good reasons, a physician other than provided by the
               employer is called to treat the injured employee, during such
               period, the reasonable cost of such service shall be paid by the
               employer if ordered so to do by the Commission.

Code § 65.2-603(C). Under this statute, if an employee, “without authorization but in good

faith,” obtains medical treatment from a different physician than the one provided by the

employer, the employer is responsible to pay for this treatment if “it is determined that the

treatment provided by the employer was inadequate treatment for the employee’s condition and

the unauthorized treatment received by the claimant was medically reasonable and necessary

treatment.” Shenandoah Prods., Inc. v. Whitlock, 15 Va. App. 207, 212, 421 S.E.2d 483, 486

(1992); see also Apple Constr. Corp., 44 Va. App. at 461, 605 S.E.2d at 352 (listing

circumstances when the commission may order a change in treating physicians, including when

“inadequate treatment is being rendered”).

       Here, Hayes testified at the evidentiary hearing that employer not only refused to cover

the surgery to repair her peroneal tendon, but also told her that it would not even pay for her to

see Dr. Rayno. This unrebutted testimony was sufficient to establish that employer would not


       5
         This Court, “in keeping with prior decisions of the commission,” has held that
“‘necessary medical attention’ as that phrase is used in Code § 65.2-603(A)(1) includes palliative
treatment” for “credible . . . complaints of continuing pain.” H.J. Holz & Son, Inc., 37 Va. App.
at 655 & 657, 561 S.E.2d at 11 & 12 (citing Davis v. Old Oak Mining, 76 OWC 113 (1997)); see
also Thomas v. Billy Thomas Heating and Air, VWC File No. 206-41-68 (Nov. 9, 2009) (“The
claimant is entitled to medical care to alleviate painful symptoms, even if the treatment is not
curative.”). Therefore, as the commission noted in this case, Dr. Rayno’s opinion that Hayes’s
posterior tibial tendon had reached maximum medical improvement “does not equate to a
statement that no further treatment of any kind is necessary for the ongoing pain symptoms that
involve the parts of the claimant’s foot injured in the June 19, 2007 accident.”
                                             -8-
authorize any further treatment under Dr. Rayno – including treatment for any continuing pain

related to her compensable posterior tibial tendon injury. Thus, the commission’s finding that

Hayes “reasonably believed that the insurer was denying all care” under Dr. Rayno was

supported by the record.

       In addition, the commission found that Hayes felt continuing pain related to her

compensable posterior tibial tendon injury. Viewing the relevant evidence in the light most

favorable to Hayes, as we must, since she was the prevailing party in the commission on this

issue, see Apple Constr. Corp., 44 Va. App. at 460, 605 S.E.2d at 352, the commission’s factual

finding here was supported by credible evidence. As the commission noted, Dr. Dale had

examined Hayes more recently than Dr. Rayno, and Dr. Dale reported that Hayes suffered

continuing pain related to the posterior tibial tendon injury. The commission credited Dr. Dale’s

opinion on this issue, as it was entitled to do as the factfinder. 6 See Georgia-Pacific Corp., 32

Va. App. at 5, 526 S.E.2d at 269.

       Therefore, credible evidence supported the commission’s finding that Hayes felt

continuing pain related to her compensable posterior tibial tendon injury, but that employer had

refused to cover all further treatment under Dr. Rayno – including treatment to alleviate pain that

was related to her compensable injury to the posterior tibial tendon. However, the commission

also found that, at that point, Hayes “has now established a course of treatment with Dr. Dale.”

Given these circumstances, employer’s decision not to cover any further treatment from

Dr. Rayno constituted inadequate treatment of Hayes’s continuing pain related to her


       6
         We note that Dr. Dale’s examination of Hayes focused on the subtalar joint – which
Dr. Bava had reported was a source of pain for Hayes months before pain associated with the
peroneal tendon was detected by Dr. Bava. During her March 2009 examination of Hayes,
Dr. Dale “recommended another diagnostic injection in the subtalar joint, as the last one was
performed almost a year ago” by Dr. Bava. There is no indication in the commission record that
employer had refused to cover this injection by Dr. Bava or had claimed that this treatment was
unrelated to the compensable posterior tibial tendon injury.
                                           -9-
compensable posterior tibial tendon injury, and Dr. Dale’s alternative course of treatment to

alleviate this pain, therefore, was “reasonable and necessary.” H.J. Holz & Sons, Inc., 37

Va. App. at 655, 651 S.E.2d at 11.

       Accordingly, we conclude, under the specific facts of this case, that the commission did

not err when it authorized Dr. Dale to treat Hayes’s continuing pain related to her compensable

posterior tibial tendon injury.

                                        III. CONCLUSION

       Credible evidence supported the commission’s finding that Hayes’s peroneal tendon

injury was not related to her compensable posterior tibial tendon injury, and the commission did

not err when it terminated temporary total disability benefits based on Dr. Rayno’s opinion that

Hayes could return to “full, unrestricted duty” with respect to the compensable injury to her

posterior tibial tendon. In addition, the commission did not err when it authorized Dr. Dale to

treat Hayes’s continuing pain related to this compensable injury, given that employer had denied

coverage for any further treatment under Hayes’s previous treating physician, Dr. Rayno.

Accordingly, for the foregoing reasons, we affirm the commission’s order in each of these cases.



                                                                                        Affirmed.




                                          - 10 -
