Opinion
Record No. 1770-94-1
Decided: April 18, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Annette Miller; Parker, Pollard Brown, on brief), for appellant.
(Linda M. Ziegler; Karen A. Gould; Crews Hancock, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Dean Pollack contends that the Workers' Compensation Commission erred in denying his request for reimbursement of the cost of a twenty-four hour aide, hired by him from June 14, 1992 through January 31, 1993, on the basis that his evidence did not prove that the aide was reasonable and necessary medical care pursuant to Code Sec. 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. Rule 5A:27.
In his brief, Pollack presents five questions with various subparts. However, based upon the commission's decision, we have consolidated Pollack's questions presented to address the sole issue that was before the commission. Claimant's various arguments will be addressed in our consideration of the issue that was before the commission. In addition, we find that, contrary to Pollack's assertion, there is nothing in the record to indicate that the commission focused on the issue of causation as a basis for its denial of Pollack's application.
On appellate review, we construe the evidence in the light most favorable to the party prevailing before the commission. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Unless we can say as a matter of law that Pollack's evidence sustained his burden of proof, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Code Sec. 65.2-603 (formerly Code Sec. 65.1-88) provides that, "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 . . . and such other necessary medical attention." (Emphasis added.) In Warren Trucking Co. v. Chandler, 221 Va. 1108, 277 S.E.2d 488 (1981), the Supreme Court set forth the standards to be applied in determining what constitutes "other necessary medical attention." One of those standards requires that the "the medical attention is performed under the direction and control of a physician, . . . [who] must state [that] home nursing care is necessary . . . and must describe with a reasonable degree of particularity the nature and extent of duties to be performed by the [aide]." Id. at 1116, 277 S.E.2d at 493. The commission found that Pollack's evidence failed to meet this standard.
The record is devoid of any evidence that the aide hired by Pollack in June 1992 performed medical attention under the direction and control of a physician. The commission correctly found that Dr. McCoy's "after-the-fact determination of necessity, . . . [precluded] a finding that there was any contemporaneous control by a physician." Thus, the commission did not err in finding that the nursing care provided during the claimed period was not under the direction and control of a physician.
Furthermore, Pollack testified in general terms that the aide's duties were to assist him in bathing, going to the bathroom, cooking, cleaning, taking his medication, and occasionally changing his bandages. There is nothing in the medical record to support the necessity of these services. In addition, Dr. McCoy did not describe or set forth in any medical record with particularity the nature and extent of duties to be performed by the aide. Thus, the commission did not err in finding that Pollack's evidence failed to prove that a physician described with particularity the nature and extent of the duties to be performed by the aide.
We note that it was not disputed that, up until June 1992, employer provided a home health nurse who performed twice daily dressing changes.
Accordingly, we cannot say as a matter of law that the commission erred in denying Pollack recovery of the cost of the twenty-four hour aide. The commission's decision was controlled by the Supreme Court's decision in Warren Trucking and its findings are supported by the record. We find no merit in Pollack's assertion that the Supreme Court's holding in Warren Trucking should be extended to provide recovery of the cost of household chores for an amputee, especially, where, as here, there is no medical evidence to support the necessity of such services.
For these reasons, we affirm the commission's decision.
Affirmed.