                  COURT OF APPEALS OF VIRGINIA

Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia


LOUDOUN COUNTY SCHOOL BOARD
                                           MEMORANDUM OPINION * BY
v.   Record No. 3106-02-2                  JUDGE D. ARTHUR KELSEY
                                                JUNE 17, 2003
LYNN POSTEN KOSTECKA


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Michael L. Zimmerman (Siciliano, Ellis,
          Dyer & Boccarosse, on brief), for appellant.

          Dena Rosenkrantz, Staff Attorney (Virginia
          Education Association, on brief), for
          appellee.


     The Loudoun County School Board appeals a decision from the

Workers' Compensation Commission, claiming the commission erred

by finding that the school board must pay for a school bus

driver's medical treatment and surgery performed by an

unauthorized physician.     Because this case fits within a narrow

exception to the general rule that employers need not pay for

unauthorized medical care, we affirm.

                                  I.

     On appeal, "we view the evidence in the light most

favorable to the prevailing party" before the commission.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d

538, 539 (2003); Tomes v. James City (County Of) Fire, 39

Va. App. 424, 429, 573 S.E.2d 312, 315 (2002).

     After completing her bus route on January 25, 1996, Lynn P.

Kostecka, a bus driver for the Loudoun County Schools, slipped

and fell in the school's snow-covered parking lot.    Kostecka

immediately went to the emergency room of a local hospital where

doctors treated her for head trauma, neck strain, and muscular

strain.   The injuries forced her to remain out of work,

entitling her to receive both temporary total and temporary

partial disability payments.   In 1999, the commission awarded

Kostecka medical benefits "for as long as necessary."

     Kostecka visited a number of doctors for treatment of her

injuries.   She often complained of back pain and, despite seeing

at least nine different doctors over a five-year period, her

pain never subsided.   On October 9, 2001, Kostecka suffered "leg

pains and back pains" so severe that "she couldn't walk."    She

called her treating physician, Dr. James T. Gable, who was "gone

for the afternoon" and his nurse "couldn't reach him."     Kostecka

explained her condition to Gable's nurse, who agreed that

Kostecka should go to the emergency room.   Kostecka went to a

local hospital where the attending physician discharged her

after examining her and giving her a shot for pain.

     The next day, October 10, Kostecka returned to the

emergency room after the pain had worsened from the day before.

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There, the attending physician examined her and referred her to

Dr. Thomas Schuler, an orthopedic surgeon.    Schuler performed a

closed MRI two days later, which offered new insight into the

cause and extent of Kostecka's injury.   Kostecka's previous

doctors, Dr. Schuler testified, had relied on an open MRI scan

of "very poor quality" which "led to her under treatment and

missed diagnosis."   Based on the results of the new MRI,

Dr. Schuler concluded Kostecka's symptoms were directly related

to her 1996 accident.   Believing the situation required

immediate surgical treatment, Dr. Schuler operated on Kostecka

on October 17.   Since the surgery, Dr. Schuler stated, Kostecka

has "experienced marked improvement and better function."

     The school board refused to pay Dr. Schuler's bill on the

ground that his treatment was unauthorized.   A deputy

commissioner held that, while unauthorized, "the surgery and

resultant treatment is causally related to the January 25, 1996

injury and that the claimant has established good cause for

seeking the unauthorized treatment."    On review, the commission

upheld the deputy's decision.   The commission found that

Dr. Schuler's treatment met the "emergency" and "other good

reasons" exceptions of Code § 65.2-603(C) to the general rule

relieving employers from liability for unauthorized medical

treatment.




                                - 3 -
                                II.

     After an employee suffers a compensable injury, the

employee must select a physician from the employer's authorized

list of physicians.   See Code § 65.2-603(A)(1); H.J. Holz & Son,

Inc. v. Dumas-Thayer, 37 Va. App. 645, 653, 561 S.E.2d 6, 10

(2002).   The employee "risks not being reimbursed," id. at 654,

561 S.E.2d at 10, for receiving treatment from any other source

"unless referred by said physician, confronted with an

emergency, or given permission by the employer and or its

insurer or this Commission," Shenandoah Prods. Inc. v. Whitlock,

15 Va. App. 207, 210-11, 421 S.E.2d 483, 485 (1992) (quoting

Breckenridge v. Marval Poultry Co., 228 Va. 191, 194, 319 S.E.2d

769, 770-71 (1984)); see also Georgia Pac. Corp. v. Dancy, 17

Va. App. 128, 134-35, 435 S.E.2d 898, 902 (1993).

     Under a "rare exception" to this general rule, an employer

must reimburse unauthorized treatment sought "in an emergency"

during the relevant treatment period.   Code § 65.2-603(C); H.J.

Holz & Son, Inc., 37 Va. App. at 653-54, 561 S.E.2d at 10.      An

emergency arises when the employee reasonably believes "that his

physical situation was such that he required emergency treatment

to relieve his pain, whether real or imagined."     Payne v. Master

Roofing & Siding, Inc., 1 Va. App. 413, 415, 339 S.E.2d 559, 560

(1986).   As long as the employee's "subjective symptoms were




                               - 4 -
related to the accidental injury," any treatment rendered in an

emergency situation is compensable.     Id.

     In this case, the commission found that the emergency care

exception justified Kostecka's hospital visits on October 9 and

10, 2001.   On October 9, Kostecka, suffering such "severe leg

pains and back pain" that she "couldn't walk," telephoned

Dr. Gable, her treating physician.     Because Dr. Gable was

unavailable, a nurse at his office referred Kostecka to the

emergency room at a local hospital.    Kostecka returned to the

same emergency room the next day when her pain worsened.       Faced

with these facts, the commission did not err in finding that

Kostecka's medical treatment on October 9 and 10 fell within the

emergency exception of Code § 65.2-603(C).

     Following the emergency room treatment, Kostecka continued

to see Dr. Schuler, culminating in the October 17 surgery.

Though recognizing that a claimant, following emergency

treatment, "is not authorized to continue treatment, outside

that of her treating physician," the commission found that

Kostecka's evolving situation triggered the "other good reasons"

exception of Code § 65.2-603(C).   This exception requires proof

that (i) the employee "acted in good faith," (ii) the treatment

provided by the employer was "inadequate," and (iii) "the

alternative treatment was medically reasonable and necessary."

H.J. Holz & Sons, Inc., 37 Va. App. at 654, 561 S.E.2d at 10;

Whitlock, 15 Va. App. at 212, 421 S.E.2d at 486.

                               - 5 -
     The commission's factual findings on the good faith issue

are "conclusive and binding on this Court if supported by

credible evidence."    Blue Ridge Mkt. of Va. v. Patton, 39

Va. App. 592, 600, 575 S.E.2d 574, 578 (2003).    The adequacy of

the prior medical treatment, along with the reasonableness and

necessity of the unauthorized treatment, present mixed questions

of law and fact.    H.J. Holz & Sons, Inc., 37 Va. App. at 655,

561 S.E.2d at 11.

     On the first issue, we find that credible evidence supports

the commission's finding that Kostecka acted in good faith in

seeking treatment from Dr. Schuler.     His medical care began when

Kostecka visited the emergency room.    Dr. Schuler promptly

ordered a closed MRI scan, which led him to advise Kostecka that

her prior physicians had misdiagnosed the severity of her

condition and the need for surgery.     The commission also found

credible Kostecka's testimony about experiencing acute,

unrelenting pain during this period of time.    Together, these

facts provide a fair basis for the commission's finding of good

faith.

     On the second issue, we agree with the commission's finding

that Kostecka's "previous treatment was inadequate" and that a

"misunderstanding about her condition led to her lack of

improvement."   Before Kostecka met with Dr. Schuler, at least nine

other doctors had examined her.   Despite her continuing problems,

none of these physicians "was currently providing a treatment plan

                                - 6 -
to address the claimant's ongoing condition."   Noting that

Kostecka's previous doctors had relied upon an open MRI scan of

"very poor quality," Dr. Schuler performed a closed scan, which

revealed in greater detail the extent of her injuries and the

likely reason why she had "not been diagnosed and treated

properly."

     The school board points out that Kostecka refused in 1997 to

submit to a closed MRI recommended by Dr. Ian Wattenmaker.    From

that point forward, the school board reasons, the physicians

treating Kostecka were justified in not continuing to recommend

this procedure.   We disagree.   Kostecka submitted to two open MRIs

in 1998.   These scans, Dr. Schuler opined, were of "very poor

quality" and failed to "show the true detailed anatomy of her

lumbar spine."    Nothing in the medical records between 1998 and

2001 suggests that any physician advised Kostecka of the

diagnostic inadequacies of these open MRIs.   Nor does it appear

that any physician, until Dr. Schuler, realized the need to

address again with Kostecka the issue of obtaining a closed MRI

given the limited value of her 1998 open MRI scans and her

continuing, chronic symptoms of lower back pain.   These facts

justify the commission's finding that Kostecka's prior treatment

was inadequate for purposes of applying the "other good reasons"

standard of Code § 65.2-603(C).

     Finally, we agree with the commission that Dr. Schuler's

treatment satisfies the requirement that it be medically

                                 - 7 -
reasonable and necessary.   Necessary treatment includes any

treatment from which an employee "realizes appreciable benefit and

relief from said change."   H.J. Holz & Sons, Inc., 37 Va. App. at

656, 561 S.E.2d at 12 (citation omitted).   Prior to the surgery,

Kostecka found it difficult even to walk.   After the surgery,

Kostecka "markedly improved her symptoms in the short period" and

was "functioning much better."    The school board presented no

evidence challenging the necessity for, or medical efficacy of,

Kostecka's surgery.

                                 III.

     We affirm the commission, finding no error in its application

of the legal standards required by the "emergency" and "other good

reasons" exceptions of Code § 65.2-603(C) or in its findings of

fact underlying the application of these standards. 1

                                                     Affirmed.




     1
       In its brief on appeal, the school board also argues that
Kostecka's temporary total disability benefits should have been
suspended while she prepared for, and recuperated from,
voluntary eye surgery unrelated to her compensable injury. As
the school board conceded at oral argument, however, this issue
was not addressed in the school board's request for full
commission review. See 16 Va. Admin. Code § 30-50-40(1),
Commission Rule 3.1. Thus, it cannot now be reviewed on appeal
to this Court. See Rule 5A:18.

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