COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Haley Argued at Salem, Virginia

VIRGINIA BIRTH-RELA TED NEUROLOGICAL INJURY COMPEN SATION PROGRAM MEMORANDUM OPINION * BY v. Record No. 2299-04-3 JUDGE LARRY G. ELDER APRIL 5, 2005 JONA LYNN WILLIAMS ON, MOTHER OF SUSAN LYNN S AUNDERS-WILLIAMSON

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Angela Boice Axselle, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Francis S. Fergus on, Deputy Attorney General, on brief), for appellant. Andrea J. Geiger (Nora Beth Do rsey; Williamson & Lavecchia, L.C., on brief), for appellee.
The Virginia Birth-Related Neurological Injury Compensation Pr ogram (the Program) appeals from a decision of the Workers’ Comp ensation Commission determining that Jona Lynn Williamson (Williamson), adoptive mother of Program participant Susan Lynn Saunders-Williamson (Susan), is entitled to co mpensation for a generator under the Virginia Birth-Related Neurological Injury Compensation Act (the Act). The Program contends the evidence was insufficient to prove a generator was “medically necessary” or “reasonable” and that the commission’s ruling improperly invade d the Program’s ability to manage the fund created by the Act. 1 We hold credible evidence supports the commission’s conclusion that a

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 The Program also contends that the genera tor is not an “actual” expense compensable under Code § 38.2-5009 because it has not yet been “incurred.” The Program failed to present- 2 - generator was both medically necessary and reasona ble under the facts of th is case and that the commission’s ruling, based on its factual findin gs, did not improperly invade the Program’s ability to manage the fund. Thus, we affirm.
I. BACKGROUND Susan was born on April 8, 2000. During Susan’ s birth, a “catastrophi c event” occurred, which caused the death of Susan’s biological mother and resulted in injuries to Susan that led to entry of an order formally accepting her into the Program on July 22, 2002. Susan is “profoundly mentally handicapped.” She “breath[ e]s on her own” without a ventilator but has chronic breathing difficulties wh ich require treatment using elect ricity-dependent equipment. By letter of October 9, 2003, Williamson as ked the Program to provide her with a generator to operate the equipment used to treat Susan’s chronic breathing difficulties in the event of a power outage. The Program denied the request, stating it has been the Program’s “practice . . . to supply generators [only] when li fe-sustaining equipment (s uch as respirators) is required.” The Program indicated it had “supplied back-up systems for all necessary equipment” and suggested Williamson file a medical priority re quest with her power s upplier to “assure that in an emergency [she] would be given priority tr eatment.” The Program indicated that “If such a request to the electric power co mpany is denied, and with a lette r stating so, the [Program] is willing to reconsider the request.” Williamson then appealed the Program’s denial to the commission. To her appeal, she attached a letter her el ectricity provider had required her to sign, acknowledging she understood the power company could not guarantee electrical serv ice or priority restoration thereof and that

this argument to the commission, and we will not consider it for the first time on appeal. See Rule 5A:18.- 3 - it recommended she “maintain a back-up system,” such as a generator. She also attached a prescription from Susan’s doctor, G. Austin Spruill, indicating “Susan needs a generator available in a power outage to be able to run medical equipment that she needs for her complex medical condition.” 2 At a hearing before the chief deputy commissioner, Williamson and one of Susan’s nurses testified about Susan’s chronic breathing difficulties and the difficulties that would arise in treating the condition in the event of a power outage. The deputy commissioner a nd, on request for review, the commission both concluded that the evidence Williamson offered was sufficient to meet her burden of proof and entered an order awarding her payment for “a typical generator.” The Program noted this appeal.
II. ANALYSIS Code § 38.2-5009 provides in relevant part th at an individual r eceiving an award of benefits under the Act shall be entitled to “comp ensation for . . . items relative to such injury,” including “[a]ctual medically necessary and reasona ble expenses of . . . residential and custodial care and service, special equipment or facilities.” Code § 38.2-5009(A)(1). Whether an expense is medically necessary and reasonable is a question of fact, cf. ARA Servs. v. Swift , 22 Va. App. 202, 208, 468 S.E.2d 684, 684-85 (1996) (decided under Workers’ Compensation Act), and will be affirmed on appeal if the record contains credible evidence to

2 In reply to the Program’s request for review, Williamson attached to her written statement a supplemental letter from Dr. Spruill dated March 30, 2003. The commission expressly declined to consider that letter, and Williamson did not assign error to that decision. See 16 VAC 30-50-20 (Va. Workers’ Comp. Co mm’n Rule 1.6(D)) (“Only information contained in the file at the time of the original decision along with the request for review and any response from the opposing party will be considered. Additional evidence will not be accepted.”). Thus, that letter is not part of the record before us on appeal, and we do not consider it.- 4 - support it, Va. Birth-Related Neurol ogical Injury Comp. Pgm. v. Young , 34 Va. App. 306, 317, 541 S.E.2d 298, 304 (2001). As with any medical determination, the opinion of the treating physician is entitled to great weight. Cf. Pilot Freight Carriers v. Reeves , 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986) (decided under Workers’ Compensation Act). Further, determinations of medical necessity, like ques tions of medical causation, need not be based solely on medical evidence. Cf. Dollar Gen’l Store v. Cridlin , 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996) (applying principl e in context of determini ng causation under Workers’ Compensation Act). Necessity, li ke causation, may be proved by eith er direct or circumstantial evidence, including medical evidence or “[t]he testimony of a claimant.” Id. Proving something to a “‘[r]easonable degree of medical certainty ’ requires only [a showing] that ‘it is at least more probable than not . . . .’” Greif Cos. v. Sipe , 16 Va. App. 709, 714-15, 434 S.E.2d 314, 317-18 (1993) (quoting Ross Labs. v. Barbour , 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991)) (upholding finding of cau sation where doctor admitted possibility of non-work-related causes for condition but opined condition “was more likely related to her work activity” without using term, “reas onable degree of medi cal certainty”); see Coffey v. Va. Birth-Related Neurological Injury Comp. Pgm. , 37 Va. App. 390, 405-06, 558 S.E.2d 563, 570-71 (2002) (concluding opinion not stated to requisite reasonabl e degree of medical certainty where physicians gave opinions based on “inconsis ten[cies]” and “feeling[s]”). The commission is not barred from giving a medical opinion any we ight simply because the health care provider rendering it does not state the opinion “to a reas onable degree of medical certainty.” See Lindenfeld v. City of Ri chmond Sheriff’s Office , 25 Va. App. 775, 784, 492 S.E.2d 506, 510-11 (1997) (noting fact that physic ian failed to state opinion rega rding causation to a reasonable degree of medical certainty--under statute requiring proof by “clea r and convincing evidence, to a reasonable degree of medical certainty”-- permitted commission to “assign little weight” to- 5 - opinion but did not in dicate that fact required opinion be given little we ight or excluded); Island Creek Coal Co. v. Breeding , 6 Va. App. 1, 11-12, 365 S.E.2d 782, 788 (1988) (holding commission could draw reasonable inference from evidence that “within a reasonable degree of medical certainty” standard was met and “[w]e will not substitute form over substance by requiring a physician to use the magic words ‘to a reasonable medical certainty’ when the record is void of any evidence of non-employment factor s responsible for the hearing loss”); see also Mueller v. Commonwealth , 244 Va. 386, 410, 422 S.E.2d 380, 395 (1992) (holding where party does not object that medical opinions are not stated to a reasonable degree of medical certainty at time they are admitted, party may not assert objection for first time on appeal). The Program concedes Susan’s oxygen condens er and nebulizer are medically necessary equipment. However, it contends a generator pr ovides no medical benefit and that the record contains no evidence to show how a generator is medically necessary in this case because Susan can breathe room air, has eight hours of backup oxygen, and would have time to reach a hospital or ambulance in the “unlikely ev ent of a power outage or the ra re event of a serious power outage.” The Program contends th at requiring it to pr ovide a generator under the facts of this case would “imply” the Program must “provide ge nerators for all medical equipment which runs on electricity” and might even require the Pr ogram to provide “a backup generator for the backup generator.” The Program admits its prac tice has been to supply generators to provide emergency power for Program participants on re spirators, but it cont ends respirators are life- sustaining whereas the equipment Susan uses is only life- supporting and, thus, that providing a generator for Susan’s equi pment is not medically necessary. We hold the Program’s policy amounts to an implicit conclusion that a generator, although not itself medical equipment, is “medically necessary” where the equipment it will be used to operate is medical equipment that is life-sustaining. Under the provisions of the Act- 6 - establishing the Program and Fund, any other interp retation would necessitate the conclusion that the Program’s generator policy results in the di stribution of money from the Fund in a manner inconsistent with the provisions of the Act. See Code § 38.2-5015 (requiring Program to use funds “solely in the interest of the recipients of awards pursuan t to § 38.2-5009 and to administer the Program”). We hold further that credible evidence supports the commission’s finding, under the facts of this case, that Su san’s pulmonary equipment is life- sustaining rather than merely life- supporting , that a reliable source of electricity to operate that equipment is medically necessary, and that the purchase of a genera tor of sufficient power to operate Susan’s life-sustaining equipment is a reasonable mean s of assuring the ongoing av ailability of that life-sustaining equipment. As the commission noted, Williamson testified that although Susan is not on a ventilator, her equipment is nevertheless life-sustaining. W illiamson testified that Susan’s “oxygen level drops considerably at any time” and “if she di dn’t have her oxygen then she could die.” Williamson explained further that Susan routinely us es a nebulizer to treat her asthma and that without use of the nebulizer, Susa n’s “lungs can close up.” The evid ence established that, at any given time, Susan might have enough oxygen in her backup tank to supply only five hours of oxygen. She has no means for using her nebulizer in the event of a power outage. A generator would allow Susan’s ongoing use of he r oxygen concentrator and nebulizer. One of Susan’s nurses, Kelly Matson, testified that, in addition to receiving oxygen and using a nebulizer, Susan requires da ily treatments with a bubble mat in a Jacuzzi and a vest that uses air to “pound[] up and down on her chest” in order to loosen her congestion and improve her blood oxygen saturation levels. Matson testified that if the ne bulizer, vest and Jacuzzi were not available for use in treating Susan and the supply of oxygen was limited, “a very, very serious situation” would exist b ecause “we wouldn’t have any of those means to try to get her- 7 - SATs up.” G. Austin Spruill, Susan’s treati ng physician, opined that she “needs a generator available in a power outage to run medical equi pment that she needs for her complex medical condition.” This evidence supports the commission’s c onclusion that Susan’s pulmonary equipment is life-sustaining rather than merely life-supporting and that it is medically necessary for Williamson to have a reliable source of electricity to operate that equipment, i.e., that neither the equipment nor a reliable power source to operate it would be “only . . . a convenience.” Cf. Code § 38.2-5800 (in different chapter, regulating “Managed Care Health Insurance Plans,” of same title, defining “‘Medical necessity’ or ‘medical ly necessary,’” as used in that chapter, to mean “appropriate and necessary health care services which are rendered for any condition which, according to generally accepted principl es of good medical practice, requires the diagnosis or direct care and treatm ent of an illness [or] injury . . . and are not provided only as a
convenience ” (emphasis added)); DMV v. Wallace , 29 Va. App. 228, 233-34, 511 S.E.2d 423, 425 (1999) (providing under “doctrine of pari materia ” that courts should read and interpret statutes in harmony with related statutes). As the commission found, Dr. Spruill’s statement regarding the “medical equipment [Susan] need s for her complex condition” is broad enough to cover all necessary equipment about which William son and Nurse Matson testified. Further, the chief deputy commissioner expr essly found Williamson “has borne her burden of proof to establish that her daughter’s life depends upon the constant availability of electricity-dependent equipment necessary for her pulmonary care” (empha sis added), i.e., that the equipment at issue is life-sustaining rather than merely life-supporting. The co mmission implicitly adopted this finding. Because the commission made these findi ngs within the context of the Program’s existing guidelines regarding generator backup for life-sustaining equipment, we hold it did not,- 8 - contrary to the Program’s complaint, “overturn or undermine the Program’s policy in regard to life sustaining as opposed to life supporting equipment.” Finally, credible evidence s upports the commission’s determin ation that the purchase of a generator of sufficient power to operate Susan’s life-sustaining equipmen t is a reasonable means of assuring the ongoing availability of that equi pment. The deputy commissioner took judicial notice of the fact that “power can be out, even in metropolitan areas, for as long as two weeks,” in the aftermath of “a devastating hurricane,” and Williamson presented evidence from her electricity provider that it could not guarantee her power would be restored in a priority fashion in the event of a power outag e. This evidence supports th e commission’s conclusion that providing a generator of suffici ent power to operate Susan’ s life-sustaining equipment 3 is a “reasonable expense[]” of “residential and cust odial care and service, special equipment or facilities,” especially when compared to the alternative of emergency hospitalization.
III. For these reasons, we hold credible evidence supports the commission’ s conclusion that a generator was both medically necessary and reasona ble under the facts of th is case and that the commission’s ruling, based on application of the Program’s policy to the commission’s factual findings, did not improperly invade the Program’s ability to manage the Virginia Birth-Related Neurological Injury Compensa tion Fund. Thus, we affirm. Affirmed.

3 The size or capacity of the generator to wh ich Williamson is entitled by this decision is limited by the need to power what the commi ssion has found to be Susan’s life-sustaining equipment.