                             COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia


REBECCA L. LOCKSMITH
                                                             MEMORANDUM OPINION* BY
v.     Record No. 2798-03-2                                 JUDGE ROBERT J. HUMPHREYS
                                                                   MAY 11, 2004
CHIPPENHAM HOSPITAL AND
CONTINENTAL INSURANCE COMPANY


            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

               Gregory O. Harbison (Geoffrey R. McDonald & Associates, P.C., on
               brief), for appellant.

               Kari Lou Frank (Lisa Frisina Clement; PennStuart, on brief), for
               appellees.


       Rebecca L. Locksmith appeals a decision of the Workers’ Compensation Commission,

denying her claim for temporary total disability benefits, permanent partial disability benefits,

and payment of certain medical benefits. For the reasons that follow, we affirm the decision of

the commission.

       On brief, Locksmith contends only that the commission erred in finding: 1) that her

claims for temporary total and permanent partial disability benefits were time barred, because it

interpreted the term “repair,” as it appears in Code § 65.2-708(A), too narrowly; and, 2) that her

medical treatment was unauthorized, because “[e]ven if the [c]omission did not accept

[Locksmith’s] testimony regarding her notification of her new address and request for a panel in




       *
          Pursuant to Code § 17.1-413, this opinion is not designated for publication. Moreover,
as this opinion has no precedential value, we recite only those facts necessary to our holding.
January 1999 and April 1999, the evidence [was] clear that she reiterated this request in May

2002.”

         Relevant to Locksmith’s first question presented, Code § 65.2-708(A) provides:

                Upon its own motion or upon the application of any party in
                interest, on the ground of a change in condition, the Commission
                may review any award and on such review may make an award
                ending, diminishing or increasing the compensation previously
                awarded . . . . No such review shall be made after twenty-four
                months from the last day for which compensation was paid,
                pursuant to an award under this title, except: (i) thirty-six months
                from the last day for which compensation was paid shall be
                allowed for the filing of claims payable under § 65.2-503 and
                certain claims under subsection B of § 65.2-406 or (ii) twenty-four
                months from the day that the claimant undergoes any surgical
                procedure compensable under § 65.2-603 to repair or replace a
                prosthesis or orthosis.

(Emphases added).

         Locksmith argues that, although she was last paid benefits (as a result of her 1996

work-related knee injury) more than 36 months prior to her 2002 filings of several

change-in-condition applications, the commission erred in denying benefits related to her June

18, 2002 knee surgery because the surgery entailed a “repair” of her knee prosthesis. We

disagree and affirm the decision of the commission.

         We first note that the commission’s interpretation of the term “repair,” as it is used in

Code § 65.2-708, is a conclusion of law that is not binding on this Court. Thomas Refuse

Service v. Flood, 30 Va. App. 17, 20, 515 S.E.2d 315, 317 (1999). Nevertheless, “the

commission’s construction of the Workers’ Compensation Act is entitled to great weight on

appeal.” Id. (citing Wiggins v. Fairfax Park Ltd. Pshp., 22 Va. App. 432, 441, 470 S.E.2d 591,

596 (1996)).

         It is well settled that “when analyzing a statute, we must assume that ‘the legislature

chose, with care, the words it used when it enacted the relevant statute, and we are bound by


                                               -2-
those words as we interpret the statute.’” City of Virginia Beach v. ESG Enterprises, Inc., 243

Va. 149, 153, 413 S.E.2d 642, 644 (1992) (citation omitted). “The main purpose of statutory

construction is to determine the intention of the legislature ‘which, absent constitutional

infirmity, must always prevail.’” Last v. Virginia State Bd. of Med., 14 Va. App. 906, 910, 421

S.E.2d 201, 205 (1992) (quoting Board of Supervisors v. King Land Corp., 238 Va. 97, 103, 380

S.E.2d 895, 897 (1989)). “When, as here, a statute contains no express definition of a term, the

general rule of statutory construction is to infer the legislature’s intent from the plain meaning of

the language used.” Hubbard v. Henrico Ltd. Pshp., 255 Va. 335, 340, 497 S.E.2d 335, 338

(1998). We may not, by interpretation or otherwise, “add to a statute language which the

legislature has chosen not to include.” County of Amherst Bd. of Supervisors v. Brockman, 224

Va. 391, 397, 297 S.E.2d 805, 808 (1982).

        In contexts unrelated to workers’ compensation, the Supreme Court of Virginia has

defined “repair” as “to fix or ‘restore . . . what is torn or broken.’” Montgomery v. Columbia

Knoll Condominium Council of Co-Owners, 231 Va. 437, 439, 344 S.E.2d 912, 913 (1986)

(quoting Webster’s Third New International Dictionary 1923 (1981)). To “repair” an item is to

“restore [the item] by replacing a part or putting together what is torn or broken” - to “restore [it]

to a sound or healthy state.” Webster’s Third New International Dictionary 1923 (1993).

        Dr. Wallskog’s notes pertaining to Locksmith’s June 18, 2002 surgery stated as follows,

in relevant part:

                Medial and lateral gutters were normal. Suprapatellar pouch
                revealed a large area of hypertrophic tissue from the superior
                aspect of the patella. The patella was evaluated. There was a
                linear area of wear in the patellar component which matched with
                the roof of the notch. This defect in the patellar component
                articulated with the roof of the notch of the femoral component
                approximately 60 degrees of flexion. Otherwise the femoral
                interfaces were normal. The femoral box as well as the tibial post
                were otherwise normal with minimal evidence of polyethylene
                wear. There was a small amount of medial and lateral
                                               -3-
               pseudomeniscus. However, this did not appear to be significantly
               erythematous. Next, a shaver was then used to remove the medial
               and lateral pseudomeniscus which was within the joint and which
               did impinge between the femoral component and the tibial
               polyethylene. This was removed in its entirety. Attention was
               then turned back to the patella. A significant amount of
               hypertrophic redundant synovium and fibrous tissue from the
               superior aspect of the patella. I was concerned that this may be
               causing some degree of patellar clunk syndrome. An arthroscopic
               shaver was placed in the anterolateral port and in the superolateral
               portal to remove this redundant tissue. This was removed in its
               entirety. . . . The patellar tracking was evaluated and was otherwise
               excellent.

In letters dated June 24, 2002 and August 26, 2002, Dr. Wallskog opined that Locksmith’s

symptoms and need for continuing treatment and surgery were “directly related to her initial as

well as follow-up knee replacement.” Nevertheless, Dr. Wallskog’s notes do not indicate that

the prosthesis itself required repair during the June 18, 2002 surgery, nor that such a repair was

undertaken during that surgery. In fact, in his June 24, 2002 letter, Dr. Wallskog specifically

stated that the surgery was performed for purposes of “debridement of scar tissue.” (Emphasis

added). Thus, although Dr. Wallskog’s notes indicate that he observed some “wear” of the

prosthesis, there is simply no evidence to suggest that Locksmith’s prosthesis was “repair[ed]”

during the surgery at issue. Instead, Dr. Wallskog merely removed portions of Locksmith’s own

bodily tissue, in an effort to improve the environment surrounding the prosthesis.

       As stated above, we must assume that the General Assembly intended the word “repair,”

as that term is used in Code § 65.2-708(A), to convey its ordinary meaning, and thus that the

term means only that the surgery must relate to restoring the condition of the prosthesis itself.

We cannot, as Locksmith suggests, presume that the term means anything more - such as a

restoration of the physical environment affecting the prosthesis.1 To do so would be to broaden


       1
         During oral argument, Locksmith’s counsel at first conceded that a “repair” of the
prosthesis would not include removal of the surrounding tissue. Nevertheless, in his rebuttal
argument, Locksmith’s counsel again argued that the commission erred in interpreting the term
                                            -4-
the statute by implication, adding language the legislature chose not to include. Brockman, 224

Va. at 397, 297 S.E.2d at 808. For these reasons, we find no error in the commission’s

determination that the evidence failed to prove Locksmith’s June 2002 surgery was required to

“repair” her knee prosthesis.

       We next consider Locksmith’s claim that the commission erred in finding her medical

treatment, related to the June 18, 2002 surgery, was unauthorized. Relevant to that contention,

Code § 65.2-603 provides as follows, in pertinent part:

               A. 1. As long as necessary after an accident, the employer 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.

                         *      *     *      *       *       *      *

               C. 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.

       Thus, an employer’s responsibility for medical expenses depends upon “(1) whether the

medical service was causally related to the industrial injury; (2) whether such other medical

attention was necessary; and (3) whether the treating physician made a referral to the patient.”

Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985); Code

§ 65.2-603. Locksmith, as the claimant, bears the burden of proof on these issues. McGregor v.

Crystal Food Corp., 1 Va. App. 507, 508, 339 S.E.2d 917, 918 (1986).




“repair” too narrowly, so as not to include removal of tissue from the tibial polyethelene, a
portion of Locksmith’s prosthesis. Thus, this case involves more than a mere factual issue.
Specifically, it requires an analysis of whether the commission properly interpreted and applied
the terms of the statute at issue. As stated above, we conclude that it did.
                                             -5-
       Without a referral from an authorized treating physician, Code § 65.2-603(C) provides

for treatment by an unauthorized physician in an “emergency” or “for other good reason.”

Shenandoah Products, Inc. v. Whitlock, 15 Va. App. 207, 212, 421 S.E.2d 483, 485 (1992). In

explaining the “other good reasons” test of Code § 65.2-603(C), we have stated that:

               if the employee, without authorization but in good faith, obtains
               medical treatment different from that provided by the employer,
               and 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, the employer should be
               responsible, notwithstanding the lack of prior approval by the
               employer.

Id. at 212, 421 S.E.2d at 486. “Whether the employee acted in good faith is a credibility

determination.” H. J. Holz & Son, Inc. v. Dumas-Thayer, 37 Va. App. 645, 654, 561 S.E.2d 6,

10 (2002).

       Here, Locksmith does not allege that her actions in seeking treatment from the Wisconsin

physicians were taken due to an emergency. Further, there was no evidence that the treatment

provided by the employer was inadequate because, as the commission found, the employer here

was under the impression that Locksmith had been released from care in 1999. See Bass v. City

of Richmond Police Dep’t, 258 Va. 103, 114, 515 S.E.2d 557, 563 (1999) (noting the

commission, as fact finder, “resolves all conflicts in the evidence and determines the weight to

be accorded the various evidentiary submissions” and when based on credible evidence, the

commission’s judgments are “‘conclusive and binding as to all questions of fact’” (quoting Code

§ 65.2-706(A))).

       As also found by the commission, Locksmith did not maintain contact with either the

commission or the employer after her 1999 move to Wisconsin. Indeed, the employer’s adjustor

testified that she had no record indicating that Locksmith provided the employer’s insurance

carrier with her new address. The adjustor also testified that Locksmith failed to request a panel
                                             -6-
of physicians in Wisconsin until May of 2002 – approximately one year after she had begun

extensive treatment with several unapproved Wisconsin physicians and only one month prior to

the surgery at issue. Of further significance, at the time Locksmith requested the panel,

Dr. Wallskog had already recommended the surgery. After the adjustor informed Locksmith that

she needed to locate and review Locksmith’s closed file, Locksmith waited several days, but then

called the adjustor again and informed the adjustor that she had already scheduled the surgery.

Locksmith never indicated that she would postpone the surgery; and, as stated above, no

evidence suggested that either party had any reason to believe that the surgery was required for

purposes of an emergency.

        It is true that “[a]n attending physician selected by an employee becomes the treating

physician if the employer fails or refuses to provide a panel of physicians,” Southland Corp. v.

Welch, 33 Va. App. 633, 637-38, 536 S.E.2d 443, 445 (2000), and that an “employer’s denial of

liability under the Act is equivalent to a refusal to provide the employee with medical services,”

Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App. 120, 128, 384 S.E.2d 333, 338 (1989).

However, the record here supports the commission’s conclusion that Locksmith selected her

treating physician and in fact, scheduled her June 18, 2002 knee surgery prior to her employer’s

ultimate failure and/or refusal to provide Locksmith with a panel of physicians, and prior to its

denial of liability for her claim.

        We have emphasized that “‘[r]eimbursement for unauthorized medical treatment should

be the rare exception’” and “‘[w]hen an employee seeks treatment other than that provided by

the employer or ordered by the commission, he or she does so at his or her own peril and risks

not being reimbursed.’” H. J. Holz, 37 Va. App. at 653-54, 561 S.E.2d at 10 (quoting

Shenandoah Prods., 15 Va. App. at 213, 421 S.E.2d at 486). Consistent with this principle, we

find no error in the commission’s determination that Locksmith failed to provide evidence of an

                                             -7-
emergency or “other good reason” to justify her failure to allow the employer to provide an

approved panel of physicians prior to her selection of her own physician and her decision to

proceed with the care advised by those physicians. Accordingly, we find no error in the

commission’s determination that Locksmith’s medical care, as it related to the June 18, 2002

surgery, was unauthorized pursuant to Code § 65.2-703.

                                                                                       Affirmed.




                                            -8-
Elder, J., concurring, in part, and dissenting, in part.

        I believe the majority construes too narrowly the provisions of Code § 65.2-708(A)

dealing with the repair of a prosthesis. Thus, I respectfully dissent from the portion of the

majority opinion holding Rebecca L. Locksmith’s claim for temporary and permanent disability

benefits was time barred.

        Code § 65.2-708(A) provides in relevant part as follows:

                Upon its own motion or upon the application of any party in
                interest, on the ground of a change in condition, the Commission
                may review any award and on such review may make an award
                ending, diminishing or increasing the compensation previously
                awarded . . . . No such review shall be made after twenty-four
                months from the last day for which compensation was paid,
                pursuant to an award under this title, except: . . . (ii) twenty-four
                months from the day that the claimant undergoes any surgical
                procedure compensable under § 65.2-603 to repair or replace a
                prosthesis or orthosis.

It is undisputed that Locksmith’s claim for benefits based on a change in condition was timely

filed if her June 2002 surgery is held to have involved the “repair” of her right knee prosthesis.

Locksmith underwent total knee replacement and revision in 1997, when she received a

prosthesis with an “all polyethylene patella” and “patella button” and tibial and femoral

components.

        “While we generally give great weight and deference, on appeal, to the commission’s

construction of the Workers’ Compensation Act, ‘we are not bound by the commission’s legal

analysis in this or prior cases.’” Peacock v. Browning Ferris, Inc., 38 Va. App. 241, 248, 563

S.E.2d 368, 372 (2002) (quoting USAir, Inc. v. Joyce, 27 Va. App. 184, 189 n.1, 497 S.E.2d 904,

906 n.1 (1998)). We review questions of law de novo. Sinclair v. Shelter Constr. Corp., 23

Va. App. 154, 156-57, 474 S.E.2d 856, 857-58 (1996). Further, the Act “is highly remedial and

should be liberally construed to advance its purpose . . . [of compensating employees] for

accidental injuries resulting from the hazards of the employment.” Henderson v. Central Tel.
                                                -9-
Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987). The majority notes the principle that the

commission’s interpretation of a term, such as “repair,” used in the Workers’ Compensation Act

is a conclusion of law not binding on this Court, but it fails expressly to note--and, I believe, fails

to give appropriate weight to--the principle that the Act is to be construed liberally for the benefit

of employees. See id.

       Applying these principles, I would hold the term “repair” is broad enough to encompass

what the majority describes as “restoration of the physical environment affecting the prosthesis.”

(Emphasis added). Locksmith’s treating physician, Dr. Joel Wallskog, opined that her symptoms

and need for ongoing treatment and surgery were “directly related to her initial as well as

follow-up knee replacement.” Wallskog’s operative notes indicate Locksmith developed scar

tissue that “impinge[d] between the femoral component and the tibial polyethylene,” both of

which were parts of the prosthesis. Locksmith’s surgery involved “remov[al]” of that scar tissue

“in its entirety.” That surgery also involved the shaving of “tissue from the superior aspect of the

patella,” another part of the prosthesis. Dr. Wallskog expressed concern that this tissue was

“causing some degree of patellar clunk syndrome,” interfering with patellar tracking, and he

removed that tissue, as well, “in its entirety.” The commission expressly found that the tissues

Dr. Wallskog removed “were encroaching on the proper functioning of the prosthesis” and that

the “surgery was clearly necessary to treat [Locksmith’s] painful knee symptoms.” Like the

dissenting commissioner, I would hold this surgery entailed “repair” of a “prosthesis,” as those

terms are used in Code § 65.2-708(A).

       Thus, I respectfully dissent from the portion of the majority opinion holding Locksmith’s

claim for temporary and permanent disability benefits was time barred.




                                              - 10 -
