Opinion
Record No. 1912-93-3
April 5, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Glenn W. Pulley; Mark B. Holland; Clement Wheatley, on brief), for appellants.
(William A. Parks, Jr.; Parks Vaught, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
John W. Daniel and Company, Inc. and its insurer (collectively referred to hereinafter as "employer") contend that the commission erred in finding employer responsible for the cost of Timothy Steven Hyler's (claimant) medical treatment and surgery on the ground that the treatment and surgery constituted an emergency.
We note that employer did not appeal the commission's finding that Hyler's knee injury and subsequent surgery and treatment were not a new injury, but rather were causally related to his original compensable injury. Accordingly, we need not address this issue on appeal.
Claimant suffered a compensable right knee injury while working in Richmond, Virginia for employer on September 26, 1986. He underwent surgical repair of a torn medial meniscus and he returned to regular work on December 9, 1986. Claimant received a 5% permanent disability rating to the right leg and his physician, Dr. Steven Jones, opined that he might have future trouble with his knee because of the surgical repair. Sometime after the claimant's 1986 knee injury, he moved to Iron Gate, Virginia.
In March 1992, claimant experienced a popping in his right knee while doing hurdle stretches at the Reserve Center. Approximately two weeks prior to April 6, 1992, claimant's knee knotted up while getting out of a car, and he had trouble walking on the knee.
According to claimant, he sought treatment from an orthopedic surgeon, Dr. Ian Archibald, on April 3, 1992, even though Dr. Archibald's office notes indicate that he was seen for the first time on April 6, 1992. Claimant testified that Dr. Archibald told him he needed immediate surgery because the sutures from the first surgery had torn and he was having a great deal of swelling and discoloration in his knee. Due to Dr. Archibald's statements, claimant believed that he was in an emergency situation. The arthroscopic surgery was performed by Dr. Archibald on April 6, 1992. The surgery revealed that claimant had a tear of the posterior horn of the medial meniscus through the previously repaired area. Claimant did not contact employer prior to the surgery, although he believed that Dr. Archibald had done so. Employer's representative testified that employer was not notified of the surgery until after it had been performed, and that Dr. Archibald was an unauthorized physician.
On appeal, we must construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "Code § 65.1-88 [now Code § 65.2-603(C)] provides for treatment by an unauthorized physician in an 'emergency' or 'for other good reasons.'" Payne v. Master Roofing Siding, Inc., 1 Va. App. 413, 414, 339 S.E.2d 559, 560 (1986).
The commission found that the claimant was reasonable in his assumption that the surgery was being performed on an emergency basis. We conclude that credible evidence supports this finding.
An emergency exists where an employee reasonably believes under the circumstances that a physical condition requires emergency treatment. Id. at 415, 339 S.E.2d at 560. Claimant's testimony, along with Dr. Archibald's records, support the commission's finding that claimant's treatment and surgery were required because of an emergency. Where supported by credible evidence, the commission's award is binding as to all questions of fact.James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 833, 835 (1989).
For the reasons stated, we affirm the commission's decision. Claimant's request for attorneys' fees is denied.
Affirmed.