                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


THE UNINSURED EMPLOYER'S FUND
                                             MEMORANDUM OPINION*
v.   Record No. 1677-00-3                         PER CURIAM
                                              NOVEMBER 21, 2000
DARYL CLARK CHILDRESS AND
 CARILION ROANOKE MEMORIAL HOSPITAL


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

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

             (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

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
          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 facility."


                                 - 2 -
     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

                               - 3 -
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 injuries.

     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 861-62.

     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

                                 - 4 -
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 decision.

                                                           Affirmed.




                              - 5 -
