                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Elder, Beales and Senior Judge Willis
UNPUBLISHED


              Argued at Salem, Virginia


              THE DEALER’S LOT, INC. AND
               ERIE INSURANCE EXCHANGE
                                                                            MEMORANDUM OPINION * BY
              v.     Record No. 2441-11-3                                   JUDGE RANDOLPH A. BEALES
                                                                                NOVEMBER 20, 2012
              LYDIA CAROL JENKINS


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               J. David Griffin (Winchester Law Group, P.C., on brief), for
                               appellants.

                               Alaina M. Dartt (Ashcraft & Gerel, LLP, on brief), for appellee.


                     The Dealer’s Lot, Inc. and its workers’ compensation insurance carrier, Erie Insurance

              Exchange (collectively, employer), 1 appeal the commission’s decision ordering it to pay for the

              cost of a surgery that Lydia Jenkins (claimant) underwent on March 25, 2010 at the University of

              Virginia Medical Center. On appeal, employer argues that the commission erroneously held it

              responsible for this surgery under the doctrine of imposition. For the following reasons, we

              affirm the commission’s decision in this case.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                      When appropriate, Erie Insurance Exchange will also be referred to as “employer’s
              insurance carrier” in this opinion.
                                          I. BACKGROUND 2

       Claimant suffered a workplace injury to her right wrist on February 24, 2003. Employer

did not dispute the compensability of this injury, and the commission entered an award for

medical benefits entitling claimant to “payment of all reasonable and necessary medical

treatment causally related to the Feb. 24, 2003 accident for as long as necessary.”

       The record on appeal also establishes that claimant was treated for the unrelated

condition of rheumatoid arthritis in her right hand and fingers. This treatment dates back at least

to May 2007, according to the record. 3

       On January 6, 2010, Dr. A. Bobby Chhabra of the University of Virginia Health System

examined claimant. Dr. Chhabra’s notes from that examination indicate that claimant’s

“rheumatoid nodules are really bothering her in her small and ring fingers and then the triggering

of her index as well as the numerous nodules and tenosynovitis of her thumb.” Dr. Chhabra

noted that he and claimant “discussed treatment options” and agreed that it would be best if

claimant underwent surgery to “remove her rheumatoid nodules from her ring, small finger, and

thumb as well as do a tenosynovectomy of her index and thumb flexor tendons as these are

painful.”




       2
          Under settled principles, the evidence is viewed in the light most favorable to claimant,
who was the prevailing party in the commission. See, e.g., R.G. Moore Bldg. Corp. v. Mullins,
10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). “On appeal, the Commission’s findings of
fact are conclusive and binding upon us if they are supported by credible evidence.” Clinchfield
Coal Co. v. Bowman, 229 Va. 249, 251, 329 S.E.2d 15, 16 (1985); see Code § 65.2-706(A).
       3
          The record contains a May 16, 2007 assessment by Dr. Danny Perry indicating that
claimant “is here about medication change and RA lab.” Dr. Perry noted that claimant “is not
feeling good” and “hurts everywhere, extremely.” He noted that “the methotrexate is helping but
lately her hands have become more painful.” Dr. Perry assessed the problem as
“RHEUMATOID ARTHRITIS as deteriorated” and, among other treatments, prescribed
Prednisone. The record is silent who paid for this medical treatment.

                                               -2-
        It is undisputed that claimant discussed her upcoming surgery with Nasha Monroe, a

workers’ compensation specialist for employer’s insurance carrier, during a February 16, 2010

telephone conversation. Monroe’s claims management note from February 16, 2010, which is

part of the commission record, states: “Clmt advised her wrist is a ‘mess’. She advised it hurts.

Her surgery is scheduled for 3-25-2010.” The claims management note also indicates that

Monroe said she would follow up with claimant “post surgery, but not before June.”

        The record is also undisputed that Monroe communicated with Dr. Chhabra’s office

about the doctor’s treatment of the claimant. The commission record contains a document from

Dr. Chhabra’s billing office stating that claimant’s treatment was covered under “INS PLAN

CODE: W00 WORKERS COMP VA,” while listing Monroe as the insurance plan contact. This

document also contains the following notation: “030510 APPROVED PER NASHA MONROE.”

(Emphasis added).

        On March 25, 2010, Dr. Chhabra performed the surgery that is the subject of this appeal.

According to Dr. Chhabra’s notes, “rheumatoid nodules and masses” were removed from

claimant’s right small finger, ring finger, middle finger, index finger, and thumb during this

procedure.

        After Dr. Chhabra performed the March 25, 2010 surgery on claimant, employer’s

insurance carrier inquired in an April 29, 2010 letter to Dr. Chhabra whether the March 25, 2010

surgery had been causally related to claimant’s compensable fractured wrist from February 2003.

Dr. Chhabra’s undated handwritten response states, “No. Related to diagnosis of Rheumatoid

Arthritis.”

        On May 24, 2010, claimant received an invoice from the University of Virginia Medical

Center indicating that she owed $16,384 for the March 25, 2010 surgery. The invoice stated the

total cost of the surgery, $17,932, had been billed to employer’s insurance carrier, which was

                                               -3-
listed as claimant’s primary insurance (with no secondary insurance listed). According to the

invoice, employer’s insurance carrier had paid $1,548 of this total, leaving claimant responsible

for the remainder of the total cost.

       Claimant filed an application for a hearing in the commission on June 7, 2010, seeking

payment from employer for the outstanding cost of the March 25, 2010 surgery. Claimant then

amended her application less than two months later, when she received an additional invoice

from the University of Virginia Health Services Foundation stating that she also owed $1,080 for

the anesthesia from the March 25, 2010 surgery. 4

       The parties stipulated before the deputy commissioner that the reason for claimant’s

March 25, 2010 surgery was not causally related to claimant’s compensable injury that occurred

in February 2003. Due to this stipulation, claimant has conceded that employer would not

ordinarily be required to cover the cost of the surgery under the provisions of Code § 65.2-603 5

or under the commission’s medical benefits award to the claimant arising from the February 24,

2003 compensable injury. However, claimant argued in the commission that employer should

still be responsible for the cost of the March 25, 2010 surgery under the equitable doctrine of

imposition, which empowers the commission in appropriate cases to “‘do full and complete

justice’ where the actions of an employer constitute an imposition on an employee.” Cheski v.

Arlington County Pub. Sch., 16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993) (quoting John

Driggs Co. v. Somers, 228 Va. 729, 734, 324 S.E.2d 694, 697 (1985)). According to claimant,


       4
         According to this second invoice, dated July 29, 2010, a payment in the amount of
$1,000.68 had been made by the workers’ compensation insurance carrier on May 10, 2010, but
this payment was refunded back to the insurance carrier on June 30, 2010.
       5
         Code § 65.2-603(A)(1) states, in pertinent part, “As long as necessary after an accident,
the employer shall furnish or cause to be furnished, free of charge to the injured employee, . . .
necessary medical attention.” Under Code § 65.2-603(A)(1), the evidence must “support a
finding of causal relation between” the workplace injury and the medical treatment. Watkins v.
Halco Eng’g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).
                                                -4-
employer’s pre-operative approval of this surgery, followed by employer’s post-operative refusal

to cover the cost of the surgery, created a substantial imposition on claimant – leaving her with a

very large medical bill of over $16,000. 6

       Consequently, much of the evidence before the deputy commissioner related to the nature

of Monroe’s pre-approval of the March 25, 2010 surgery. Claimant presented a June 16, 2010

letter from Dr. Chhabra to claimant’s counsel, in which the doctor stated:

               In response to your letter regarding Ms. Jenkins’ surgical
               intervention on March 25, 2010, attached to your letter is
               pre-authorization approval from Nasha Monroe from Erie
               Insurance. The procedure was performed after pre-authorization
               was obtained from this insurance company. If this was an error,
               please take this up with the insurance company but we would
               expect payment from the surgery provided as we had
               pre-authorization.

(Emphasis added). Dr. Chhabra also indicated in a sworn affidavit that he performed the March

25, 2010 surgery pursuant to “authorization obtained from Nasha Monroe on 3/5/10.” In

addition, as noted supra, the commission record contains a document from Dr. Chhabra’s billing

office indicating that the doctor’s treatment of claimant had been “APPROVED PER NASHA

MONROE” on March 5, 2010.

       Furthermore, claimant’s testimony at the evidentiary hearing before the deputy

commissioner largely concerned her recollection of the February 16, 2010 telephone

conversation with Monroe. Claimant testified that Monroe indicated during this conversation


       6
         Employer did not object to claimant’s assertion in the commission that claimant should
not be held responsible for the medical bills related to the March 25, 2010 surgery even if it was
determined that employer was not liable to pay for those medical bills. However, the deputy
commissioner found that “the requested action exceeds my jurisdiction,” and this issue was never
presented to the full commission. Furthermore, during oral argument in this Court, employer
appeared to contend for the first time on appeal that claimant’s medical provider cannot now
“balance bill” claimant for the outstanding balance of the March 25, 2010 surgery. See Code
§ 65.2-714(D). However, we decline to consider employer’s new, apparent argument on this
point since it was never raised in, or considered by, the commission. See Rule 5A:18; see also
Hodnett v. Stanco Masonry, Inc., 58 Va. App. 244, 253, 708 S.E.2d 429, 434 (2011).
                                                -5-
that the upcoming surgery with Dr. Chhabra was approved. When asked by her counsel whether

Monroe said that this approval was “conditional” or “contingent on anything,” claimant replied,

“No, sir.” Claimant testified that she would not have undergone the March 25, 2010 surgery

without Monroe’s prior approval, adding that she “couldn’t have afforded it.” 7

       At her deposition, Monroe testified that she only “conditionally approved surgery for

treatment that was causally related to [claimant’s] original injury” and she denied providing

unconditional approval for the surgery during the February 16, 2010 telephone conversation with

claimant or in any communications with Dr. Chhabra’s billing office.

       Concerning the February 16, 2010 telephone conversation with claimant, Monroe

testified that she knew that claimant was contemplating surgery with Dr. Chhabra at the time of

this conversation. Monroe testified that the purpose of the conversation was not to provide the

insurance carrier’s approval for any surgery – and instead explained that the conversation

reflected the normal procedure of maintaining communication with a claimant who has an open

medical benefits award. Monroe stated that she did not know that the surgery related to

claimant’s rheumatoid arthritis (rather than claimant’s compensable wrist injury) until after the

surgery occurred. Furthermore, Monroe denied knowing that claimant suffered from rheumatoid

arthritis at the time of the February 16, 2010 telephone conversation with claimant. However,

Monroe acknowledged that she had access to a file with claimant’s medical records and could

not recall “actually reviewing [claimant’s] medical records” until after the surgery occurred.

       Monroe also testified that it is the “normal practice” to give conditional approval when a

claimant’s medical provider requests approval for upcoming medical treatment. Monroe testified

that she gave conditional approval for claimant’s surgery to an individual named Karen Painter,


       7
          Claimant testified that she did not have private health insurance at the time of the March
25, 2010 surgery and that she did not become eligible to receive Medicare benefits until a week
after the surgery occurred.
                                                 -6-
whom Monroe’s claims management note for March 4, 2010 identifies as the medical provider

contact for Dr. Chhabra’s office. However, Painter’s own recollection of the nature of Monroe’s

approval of the surgery was never made a part of the commission record. The parties agreed that

it was unnecessary to depose Painter, and employer never proffered what it expected her

testimony would have been.

       Reversing the ruling of the deputy commissioner, the full commission unanimously found

that it was appropriate to hold employer responsible for the cost of the March 25, 2010 surgery

under the specific facts of this case. The commission noted that an employer is generally not

required “to pre-approve medical treatment.” However, the commission continued, when an

employer does provide pre-approval for medical treatment, “the claimant and the healthcare

provider rely on this preauthorization.” In this case, the commission found:

               While Monroe stated that she only provided “conditional”
               preauthorization in this case, and that her normal practice was to
               conditionally approve procedures when physicians called seeking
               approval, this was certainly not made clear to the claimant or the
               healthcare provider, both of whom relied on the insurer’s
               representations to their detriment in going forward with the
               surgery.

(Emphasis added). Accordingly, the commission ordered employer to “pay the bills submitted

by the claimant related to the March 25, 2010, surgery.”

                                            II. ANALYSIS

       The Workers’ Compensation Act (the Act) grants the commission with the authority,

inter alia, to “adjudicate issues and controversies relating thereto” and “to enforce compliance

with its lawful orders and awards.” Code § 65.2-101(A). Commenting on the nature of the

commission’s jurisdiction, the Supreme Court held over six decades ago, “It seems to us that

when the General Assembly established the Industrial Commission for the summary disposition

of cases arising out of industrial accidents, it intended that that tribunal should have jurisdiction

                                                 -7-
to do full and complete justice in each case.” Harris v. Diamond Const. Co., 184 Va. 711, 720,

36 S.E.2d 573, 577 (1946). The Supreme Court explained in Harris that the commission is

empowered “to protect itself and its awards from fraud, imposition and mistake.” Id. (emphasis

added).

                                 Scope of the Doctrine of Imposition

          Consistent with the Supreme Court’s holding in Harris, the doctrine of imposition “grants

the Commission ‘jurisdiction to do full and complete justice in each case.’” Washington v. UPS

of Am., 267 Va. 539, 546, 593 S.E.2d 229, 232 (2004) (quoting Harris, 184 Va. at 720, 36

S.E.2d at 577); see also Somers, 228 Va. at 734, 324 S.E.2d at 697. To that end, the doctrine of

imposition “‘empowers the commission in appropriate cases to render decisions based on justice

shown by the total circumstances even though no fraud, mistake or concealment has been

shown.’” Odom v. Red Lobster # 235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995)

(quoting Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992)).

          On appeal, employer argues that the doctrine of imposition is wholly inapplicable here,

given claimant’s stipulation before the deputy commissioner that her need for the March 25,

2010 surgery was not causally related to her February 2003 compensable injury. Noting that it

would not ordinarily be required to pay for the cost of the March 25, 2010 surgery under Code

§ 65.2-603 (since the March 25, 2010 surgery was not casually related to claimant’s

compensable injury), employer claims that holding it responsible for the cost of the March 25,

2010 surgery under the doctrine of imposition is not “warranted under the Act.” See Butler v.

City of Virginia Beach, 22 Va. App. 601, 605, 471 S.E.2d 830, 832 (1996) (explaining that the

doctrine of imposition “focuses on . . . an unjust deprivation to the employee of benefits

warranted under the Act”). Employer places great significance on language from this Court’s

opinion in Butler, claiming that holding it responsible for the cost of the March 25, 2010 surgery

                                                 -8-
would not be “warranted under the Act” because claimant stipulated before the deputy

commissioner that the required causal relationship under Code § 65.2-603 between this surgery

and claimant’s compensable injury was not established.

       However, the Supreme Court specifically held in Harris that the commission has “the

power and authority not only to make and enforce its awards, but to protect itself and its awards

from fraud, imposition and mistake.” Harris, 184 Va. at 720, 36 S.E.2d at 577 (emphasis added);

see Bogle Development Co. v. Buie, 250 Va. 431, 434, 463 S.E.2d 467, 468 (1995) (describing

“the authority of the Commission to enforce its orders and to resolve coverage and payment

disputes”). At all times relevant to this appeal, there was an open award of medical benefits to

claimant. Claimant sought a hearing in the commission on the basis of this medical benefits

award. Under Harris, which is, of course, Supreme Court precedent that is binding on this Court,

the commission was authorized not only to enforce this award – but was also authorized to

protect this medical benefits award “from fraud, imposition and mistake.” Harris, 184 Va. at

720, 36 S.E.2d at 577 (emphasis added).

       Explaining the Harris decision, the Supreme Court actually applied the doctrine of

imposition in Somers -- holding that the commission’s decision to amend an otherwise binding

agreement between Somers and his employer was appropriate because Somers had unknowingly

agreed to an unduly low rate of average weekly wage compensation that had been calculated and

presented by his employer. See Somers, 228 Va. at 734-35, 324 S.E.2d at 697. Furthermore, in

both Odom and in Ross, this Court applied the doctrine of imposition in holding that the

expiration of the statute of limitations for filing a workers’ compensation claim should not bar

those employees’ rights to recovery because their employers had represented to them that

nothing further needed to be done to file their claims. See Odom, 20 Va. App. at 235, 456

S.E.2d at 143-44; Ross, 14 Va. App. at 7, 415 S.E.2d at 228; see generally Hampton Inn &

                                               -9-
Selective Ins. Co. of Am. v. King, 58 Va. App. 286, 299-300, 708 S.E.2d 450, 456-57 (2011)

(providing further explanation of the circumstances supporting the application of the doctrine of

imposition in Somers, Odom, and Ross).

       These decisions from the Supreme Court and from this Court reflect that, under the

appropriate circumstances, the doctrine of imposition may be invoked when a matter arises

under the commission’s subject matter jurisdiction and when a completely rigid application of

the Act’s provisions would create an injustice based on the conduct of the other party and the

specific facts of the case. See Washington, 267 Va. at 546, 593 S.E.2d at 232 (explaining that

the doctrine of imposition “grants the Commission jurisdiction to do full and complete justice in

each case” (internal quotation marks and citation omitted)); see also Overhead Door Co. v.

Lewis, 29 Va. App. 52, 60, 509 S.E.2d 535, 538-39 (1999) (“The doctrine of imposition focuses

on a party’s or the commission’s use of superior knowledge of, or experience with, the Act or

use of economic leverage, which results in an unjust deprivation of benefits under the Act or an

unjust application of the Act’s provisions.” (internal quotation marks and alterations omitted)).

       To be sure, decisions from the Supreme Court and from this Court discussing the doctrine

of imposition establish that this remedy should be applied very sparingly and only when the party

alleging an imposition has satisfied the required “‘threshold showing of unfairness.’” Miller v.

Potomac Hosp. Found., 50 Va. App. 674, 687, 653 S.E.2d 592, 598 (2007) (quoting Tuck v.

Goodyear Tire & Rubber Co., 47 Va. App. 276, 285, 623 S.E.2d 433, 437 (2005)).

               The key to meeting this threshold showing of unfairness is for the
               party arguing in favor of using the doctrine of imposition to show a
               series of acts by the opposing party or the commission upon which
               the party naturally and reasonably relies to his or her detriment.
               Thus, the issue is whether under the totality of the circumstances
               shown, the actions of [one party] created an imposition on the
               commission and the [other party] which empowered the
               commission [to] do full and complete justice.



                                               - 10 -
King, 58 Va. App. at 298, 708 S.E.2d at 456 (internal quotation marks and citations omitted)

(alterations in original); see also Butler, 22 Va. App. at 605, 471 S.E.2d at 832 (“[T]his Court has

found that the doctrine [of imposition] applies where, inter alia, the record shows a series of acts

by the employer or the commission upon which a claimant naturally and reasonably relies to his

or her detriment.”). Based on the specific circumstances (and rather unusual facts) in this

particular case, which must be viewed in the light most favorable to claimant (as the prevailing

party in the commission), we agree with the commission that claimant established the required

unfairness in this particular case.

                      Conditional Approval Was Not Clearly Communicated

       As the commission noted, employer was not required to pre-approve Dr. Chhabra’s

treatment of claimant. The Act does not require pre-approval by employers, and, thus, the

commission has not instituted such a requirement on employer. On the other hand, there is no

statute, commission rule, or case law forbidding employers from pre-approving medical

treatment.

       Here, Monroe testified that it is the “normal practice” of employer’s insurance carrier to

give conditional approval for medical treatment when it is requested by a medical provider.

When conditional approval is given, medical treatment of the claimant proceeds with the

provider having received conditional assurance of payment as long as the treatment is causally

related to a compensable injury. Conditional approval, therefore, strikes a reasonable balance

between a claimant’s interest in receiving needed medical treatment, by assuring a medical

provider that, at least, conditional approval for payment has been given, and an employer’s

interest in protecting itself from further liability under the Act for medical treatment beyond the

conditions of approval.




                                               - 11 -
       However, in this case, the commission made a factual finding that the conditional aspect

of Monroe’s approval of the March 25, 2010 surgery was never clearly communicated to

claimant or to Dr. Chhabra. This factual finding is binding on appeal because it is certainly not

plainly wrong or unsupported by the evidence. See Code § 65.2-706(A) (stating that the

commission’s findings of fact are “conclusive and binding”); Diaz v. Wilderness Resort Ass’n,

56 Va. App. 104, 114, 691 S.E.2d 517, 522 (2010) (“[W]e must defer to the commission’s

findings of fact if supported by credible evidence in the record.”).

       Indeed, the record on appeal provides ample support for the commission’s factual finding

here. Claimant testified that Monroe never said during the February 16, 2010 telephone

conversation that approval of the March 25, 2010 surgery was “conditional” or “contingent on

anything.” Furthermore, the commission record contains both a letter and a sworn affidavit from

Dr. Chhabra that approval for the surgery was given by Monroe on March 5, 2010. Moreover,

the commission record also contains a document from Dr. Chhabra’s billing office, which has the

notation “030510 APPROVED PER NASHA MONROE.” (Emphasis added). None of this

evidence, which must be viewed in the light most favorable to claimant (as the prevailing party

below), indicates that Monroe’s approval of the March 25, 2010 surgery was described as

conditional.

       In addition, while Monroe testified that she gave conditional approval for the March 25,

2010 surgery to Karen Painter (an employee in Dr. Chhabra’s office), the commission record

contains no testimony or affidavit from Painter describing the nature of the approval that was

given. Employer elected not to depose Painter or to proffer any expected testimony from her.

       On appeal, “the burden is on the appellant” – here, employer and its insurance carrier –

“to present to us a sufficient record from which we can determine whether” the commission “has

erred in the respect complained of.” Patterson v. City of Richmond, 39 Va. App. 706, 717, 576

                                               - 12 -
S.E.2d 759, 765 (2003); see Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961).

On this record, the most that can be said is that Monroe may have intended to give conditional

approval for the March 25, 2010 surgery. However, communication involves both a sender and

a recipient. The record supports the commission’s conclusion that neither claimant nor

Dr. Chhabra was aware that Monroe’s approval of the surgery was conditional because Monroe

did not clearly communicate to either claimant or Dr. Chhabra (or his employee, Karen Painter)

that the approval was conditional. Furthermore, no documentary evidence in the record compels

a conclusion that conditional approval was ever communicated by Monroe or any other

representative of employer’s insurance carrier before the surgery actually occurred.

             Claimant Detrimentally Relied on Employer’s Approval of the Surgery

       In addition, claimant testified that she would not have gone ahead with the surgery on

March 25, 2010 if Monroe had not already approved the surgery. Claimant explained that she

“couldn’t have afforded it” otherwise. Thus, claimant clearly relied on Monroe’s approval of the

surgery during the February 16, 2010 telephone conversation.

       Therefore, the evidence establishes that: (1) Monroe pre-approved the March 25, 2010

surgery without clearly communicating that the approval was conditional and that (2) claimant

relied on Monroe’s representation that the surgery was approved when she decided to go ahead

with the surgery on that date. Claimant’s natural and reasonable reliance on this approval of the

surgery 8 then proved detrimental to her when – after the surgery had already occurred –

employer reversed course and refused to cover the cost of the surgery. See Butler, 22 Va. App.

at 605, 471 S.E.2d at 832 (noting that an imposition may occur when the claimant “naturally and

reasonably relies” on the employer’s acts “to his or her detriment”).


       8
       Dr. Chhabra’s sworn affidavit establishes that he too relied on Monroe’s approval of the
March 25, 2010 surgery.

                                              - 13 -
       Employer’s Post-Operative Refusal to Cover the Surgery Constituted an Imposition

       In addition, it is especially noteworthy that employer’s insurance carrier could evidently

have easily determined before the surgery even occurred that the reason for the March 25, 2010

surgery was not causally related to claimant’s February 2003 compensable injury. Monroe’s

testimony establishes that employer’s insurance carrier had a file containing claimant’s relevant

medical records. Although this particular file was not made a part of the record on appeal, the

record does show from the medical evidence admitted at the deputy commissioner’s evidentiary

hearing that claimant had received treatment for rheumatoid arthritis since 2007 and that

Dr. Chhabra had been treating claimant for that condition since at least January 6, 2010.

However, Monroe acknowledged during her deposition that she could not recall “actually

reviewing [claimant’s] medical records” when she approved the March 25, 2010 surgery. Thus,

there is no evidence in the record that Monroe even looked at the insurance carrier’s file of

claimant’s relevant medical records at the time of the February 16, 2010 telephone conversation

with claimant or when she gave approval for the surgery to Dr. Chhabra’s office. Furthermore,

although Monroe was in contact with Dr. Chhabra’s office, the commission aptly noted that

Monroe “did not ask Dr. Chhabra or anyone else before approving the surgery, if he thought it

was causally related” to claimant’s compensable wrist injury from February 2003. 9 Given that

Monroe did not review claimant’s file or ask Dr. Chhabra’s office about the purpose of

claimant’s upcoming surgery, it is unsurprising that Monroe testified at her deposition that she




       9
          On appeal, employer notes that “the doctrine of imposition does not apply where a
carrier’s or employer’s acts are consistent with an endeavor to comply with the Act.” Odom, 20
Va. App. at 234, 456 S.E.2d at 143. However, employer never argued in the commission that its
acts or its insurance carrier’s acts were consistent with an endeavor to comply with the Act. See
Rule 5A:18. To the extent that the commission’s opinion implicitly rejects such an assertion, the
commission’s conclusion is neither plainly wrong nor unsupported by the evidence.

                                               - 14 -
was not aware of claimant’s treatment for rheumatoid arthritis until after the March 25, 2010

surgery had actually occurred.

       Dr. Chhabra’s response to employer’s questionnaire concerning the surgery – which was

directed to the doctor after the March 25, 2010 surgery occurred – established that this surgery

was related to claimant’s rheumatoid arthritis and was not related to claimant’s compensable

February 2003 injury to her wrist. There is absolutely no indication from the record that

Dr. Chhabra’s opinion would have been any different if employer had asked for his opinion

before the surgery occurred. On the contrary, Dr. Chhabra’s pre-operative notes plainly establish

that the March 25, 2010 surgery was required to treat claimant’s rheumatoid arthritis.

Employer’s insurance carrier certainly could have taken the necessary steps to investigate the

issue of causation prior to the March 25, 2010 surgery, but it simply did not do so.

       Simply put, under the facts of this case, neither claimant nor Dr. Chhabra should be held

responsible for employer’s own belated discovery that the March 25, 2010 surgery was not

causally related to claimant’s compensable injury. Acting on behalf of employer’s insurance

carrier, Monroe pre-approved the surgery, and the commission found that Monroe simply failed

to clearly communicate that this approval was conditional. To permit employer to rescind its

approval of the March 25, 2010 surgery in this case – where the commission found that

conditional approval was never clearly communicated – would be plainly unfair to both claimant

and to Dr. Chhabra. A claimant and his or her medical provider must be able to rely on approval

for medical treatment as it is communicated by the employer’s insurance carrier.

       The doctrine of imposition applies in those rare cases when one party has (and uses) “the

upper hand” to such an extent that the other party is subjected to an injustice. See Somers, 228

Va. at 735, 324 S.E.2d at 697 (explaining that the employer unfairly exercised its “upper hand”

over Somers). In light of all of the circumstances in this particular case, employer’s

                                               - 15 -
post-operative decision to refuse coverage of the March 25, 2010 surgery – which it had already

approved, without clearly communicating any conditions to claimant or her medical provider –

amounted to a plainly unfair use of its superior economic leverage over claimant. See Butler, 22

Va. App. at 605, 471 S.E.2d at 832 (explaining that imposition focuses on one party’s use of

superior knowledge of the Act or economic leverage to the detriment of the other party).

       Accordingly, on these specific facts, we agree with the commission that it had authority

to “do full and complete justice” and to hold employer responsible for the cost of the March 25,

2010 surgery because employer’s actions (and lack of due diligence in even reviewing claimant’s

file) resulted in a significant imposition on claimant. Somers, 228 Va. at 734, 324 S.E.2d at 697.

                                          III. CONCLUSION

       The commission did not err in finding that employer’s pre-approval of claimant’s March

25, 2010 surgery – followed by employer’s subsequent refusal to cover the cost of the surgery

after the surgery had occurred – was plainly unfair to claimant and resulted in a clear imposition

on her. While the doctrine of imposition should be invoked only in rare cases, the commission

did not err when it unanimously applied the doctrine here under the specific facts of this case to

hold employer responsible for the cost of the March 25, 2010 surgery. Accordingly, we affirm

the commission’s decision in this case.

                                                                                         Affirmed.




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