COURT OF APPEALS OF VIRGINIA
Present: Judges AtLe e, Malveaux and Seni or Judge Annunziata Argued by teleconference

WADE PROTUS PHILLIPS MEMORANDUM OPINION * BY v. Record No . 1963-16-4 JUDGE MAR Y BENNETT MALVEAUX AUGUST 8, 2017 LOUDOUN COUNTY , VIRGINIA

FROM THE VIRGINIA WORKERS ’ COMPENSATION COMMISSION Julie H. Heiden (Koonz, McKenney, Johnson, DePaolis & Lightfoot, LLP, on brief), for appellant. Justin R. Main (Michael S. Blile y; Siciliano, Ellis, Dyer & Boccarosse PLC, on brief), for appellee.

Wade Phillips (“claiman t”) appeals a decisi on of the Virginia Workers’ Compensation Commission (“the Commission”) f inding that treatment he receive d from an unauthorized medical provider was not compensable by L oudoun County (“employer”). S pecifically, claimant argues the Commission erred in fi nding he did not dem onstrate a “good reas on” to have a su rgery performed by a non-treating physician. For the reasons that follow, we a ffirm the Commissi on’s decision.
I. BACKGROUND This Court views the evidence in the light most favorable to e mployer, the prevailing party before the Commission. Staton v. Bros. Signal Co., 66 Va . App. 185, 188, 783 S.E.2d 539, 540 (2016). Claimant, a Loudoun County deputy sheriff, was injured during an arrest in 2006. While attempting to restrain a suspect, claimant’s right arm and wris t struck a hard surface. Claimant

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - experienced wrist and forearm pai n which eventually spread to h is shoulder and neck. Claimant was awarded temporary total disa bility benefits and lifetime me dical benefits for his injury. 1 He returned to work in December 2006. However, despite treatment by a number of physicians, his symptoms persisted. In July 2008, Dr. Paul Mecherikunne l examined claimant. Dr. Me cherikunnel, who became claimant’s treating physician, diagnosed a neuroma in cl aimant’s right forearm. Dr. Mecherikunnel reviewed claim ant’s medical records and noted that claimant had sought pain management from several physic ians and received different medic ations from each of them. That September, Dr. Mecherikunne l operated on claimant’s right forearm and, among other things, excised the neuroma. After the surgery, claimant experienced substantial pain relief that continued for approximately one year. Claiman t then noticed an increase in p ain and a decline in the mobility and functionality of his right arm. By mid-2013, claimant was suffering from incessant arm pain. H e also complained of numbness and tingling in the ext remity. Subsequently, Dr. Lee Selznick implanted a spinal cord stimulator in claimant’s back. T he stimulator provided signifi cant pain relief for two to three months. After this period of tim e, claimant’s pain began to in crease while his right arm’s strength and dexterity began to de teriorate. Although the stimulator continued to provide some relief, claimant lost strength in his arm until he could no lon ger raise it to direct traffic. Dr. Mecherikunnel examined c laimant in September 2014. He not ed claimaint’s ongoing problems with pain and loss of r ight arm functionality and that claimant appeared stressed,

1 That award terminated on December 13, 2006. A stipulated orde r entered by the Commission on March 12, 2009, resolved c laimant’s subsequent cl aims for benefits filed in February and March 2008. The partie s stipulated that claimant had suffered a change in condition for which he was entitle d to a resumption of temporary total disability benefits from January 29, 2008 until October 26, 2008. Claimant also receive d permanent partial disability payments from January 13, 2011 through May 4, 2011.- 3 - shaky, and sweaty. Claimant kepthis right hand in his pocket, rubbed it constantly, and showed signs of extensive nail biting on t hat hand. Dr. Mecherikunnel recommended that claimant check with his pain management specia lists about possible adjustments to his medications or spinal cord stimulator. He also noted a“great concern” that claimant was experiencing “a somatoform disorder” in which claimant’s stresses presented as right arm a nd hand pain. He opined that claimant should have a case manage r consider a psychiatric eval uation to determine the root cause of the problems and how best to manage them. Claimant later testified that when he left Dr. Mecherikunnel’s office after this examination, his understanding was that “there was nothing more [Dr. Mecherikunnel] could do for me.” Claimaint acknowledge d Dr. Mecherikunnel referred him back to his pain management specialists for adjustments t o his pain medication, but stated that he “didn’t want to do that.” He also testified that he thought hi s spinal cord stimulator was a djusted after the examination, but that he could not be sure this was done. Roughly one week later, followi ng a referral by his family phys ician, claimant was examined by Dr. Ivica Ducic, a board-certified plastic surgeon with a focus on peripheral nerve surgery. Without ordering diagnostic tests, and without review ing claimant’s medical records or discussing claimant’s medical hi story with Dr. Mecherikunnel, D r. Ducic determined that he could intervene surgically to hel p claimant. Dr. Ducic instruc ted claimant to contact his workers’ compensation case manager to obtain approval for the s urgery, and told claimant that until the surgery he should continue his current course of treatment. Claimant filed a claim for benefits seeking “approval of w rist surgery” in October 2014. One month after his examinati on by Dr. Ducic, claimant returned for the operation. In the interim, Dr. Ducic neither spoke with Dr. Mecherikunnel nor examined claimant’s medical- 4 - records. During the surgery, D r. Ducic removed two putative ne uromas, which he did not send to a pathologist, and excised the radial sensory nerve. After this surgery, claimant e xperienced improved dexterity in his right arm. However, his arm still “act[ed] up.” During a follow-up examination in April 2015, claimant reported to Dr. Ducic that after a recent shooting practi ce, his hand was “ quite aggravated” by pain which persisted for weeks. 2 During another follow-up examination that August, claimant re ported intermittent shooting pain and experienced deep pain at several points on his right forearm. Dr. Ducic concluded that claimant had clearly regressed since h is previous visit. In October 2015, claimant visite d Dr. Alok Gopal for pain and m edication counseling. Dr. Gopal noted that claimant c ontinued to experience severe arm pain when engaged in certain work duties. The following month, claimant visited Dr. George Van Osten for pain and medication counseling and reporte d aching, stabbing pain in his right arm. Claimant also related that after working outdoors for several hours in cold and damp conditions, his arm pain increased until he was forced to cease work for a number of days. Claimant told Dr. Van Osten that he wanted some medication to tak e for such “flare[-]ups.” Prior to a hearing on claimant’s cl aim for Dr. Ducic’s surgery, Dr. Mecherikunnel prepared a letter in which he opi ned the surgery was not necess ary, reasonable, or causally related to claimant’s work inj ury. Dr. Mecherikunnel criticize d Dr. Ducic for operating without reviewing claimant’s medical h istory, stating that it was his b elief that before operating, any reasonable physician would have r eviewed the patient’s history and would have wanted to know why previous treatments had fa iled to provide relief. Dr. Mech erikunnel concluded his letter by opining that there was “clear ps ychopathology” in claimant’s pa in presentation. He noted that

2 Claimant filed two additional claims in 2015, each of which al leged either compensable consequences of his 2006 injury or new work-related injuries ar ising from firing a firearm. The parties stipulated to the deput y commissioner that claimant sus tained compensable consequences of his 2006 injury while f iring a firearm.- 5 - claimant’s medical records indi cated a pattern of claimant seek ing treatment from different practitioners, reporting improve ment for some time, and then mo ving on to other practitioners and reporting the same symptoms . He also opined that claimant’ s habits of massaging his right forearm, sitting on his right hand, and biting his right finger s were inconsistent with a neuropathic pain pattern. After an evidentiary heari ng on January 7, 2016, the deptuty co mmissioner dismissed claimant’s claim for the sur gery performed by Dr. Ducic. Claim ant requested review by the full Commission. The full Commission, with one disse nt, determined that claimant did not meet the requirements for finding unauthoriz ed medical treatment compens able by an employer. The Commision found that when Dr. Mec herikunnel last treated claima nt, he recommended that claimant seek adjustments to hi s medication and spinal cord sti mulator. Since claimant failed to follow his physician’s treatment recommendations, however, it w as not possible to find that Dr. Mecherikunnel’s recommended t reatment was inadequate. Furt her, the Commission noted that claimant’s pain and other symptoms did not permanently res olve after Dr. Ducic’s surgery. The Commission also credited Dr. Mecherikunnel’s opinion, as cl aimant’s treating physician, that claimant had established a pattern of seeking treatment fr om different practitioners, reporting improvements in his condition, and then moving on to new practitioners with renewed symptoms. The Commission further credited Dr. Mecherikunnel’s opinion that Dr. Ducic’s surgery was not reasonable or ne cessary and that his performanc e of surgery, without a thorough review of claimant’s medical reco rds, was “unreasonable in itse lf.”- 6 - II. ANALYSIS Claimant argues that his trea tment by an unauthorized medical p rovider was compensable under the “other good reasons ” exception of Code § 65.2-603(C). 3 Thus, the cost of his treatment by Dr. Ducic should be borne by employer. We disagre e. “According to well established p rinciples, ‘factual findings of the [C]ommission that are supported by credible evidence are conclusive and binding upon this Court on appeal.’” Boys & Girls Club of Va. v. Marshall, 37 Va. App. 83, 90, 554 S.E.2d 1 04, 107 (2001) (quoting S. Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993)). Consequently, “we are bound by the [C]ommission’s findings of fact . . . even if there is evidence in the record that would support a contrary fi nding.” Anderson v. Anderson, 65 Va . App. 354, 361, 778 S.E.2d 132, 136 (2015) (quoting Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83-84, 608 S.E.2d 512, 517 (2005) ( en banc )). Under this standard of revi ew, we may set aside factual fi ndings of the Commission only where they a re “plainly wrong and without e vidence to support them.” Owens v. York Fire & Rescue, 38 Va. App. 354, 359, 564 S.E.2d 1 50, 152 (2002). The Virginia Workers’ Compens ation Act provides that, where anemployee is injured in an accident arising out of and in the course of his employment, “the employer shall furnish or cause to be furnished” an author ized medical treatment provider —that is, “a physician chosen by the injured employee from apanel of . . . physicians selected by the employer.” Code § 65.2-603(A). However, an employee may seek employer compensa tion for treatment rendered

3 On brief, claimant also argues hi s unauthorized medical treatm ent was compensable by employer because he sought that treatment when faced with a med ical emergency. However, claimant’s assignment of error encompasses only the “other good reasons” exception of Code § 65.2-603(C), not the emergency tr eatment exception. Rule 5A: 20(c) “require[s] us to hold that [an] issue is waived because it was not part of [an] appellant’ s assignment of error on . . . brief.” Simmons v. Commonwealth, 63 Va. App. 69, 75 n.4, 754 S.E.2d 545 , 548 n.4 (2014); see also Ceres Marine Terminals v. Armstrong, 59 Va. App. 694, 698 n.1, 722 S.E.2d 301, 304 n.1 (2012) (noting, in an appeal from the Commission, that “[u]nder our rules, we only address arguments encompassed by an appellan t’s express ‘assignment of error’ in his brief”). Thus, we do not consider claimant’s emergency treatment argument.- 7 - by an unauthorized physician in an emergency, due to the employ er’s failure to provide medical care, or “for other good reasons .” Code § 65.2-603(C). This C ourt has “emphasized that ‘reimbursement for unauthorized m edical treatment should be the rare exception’ and that ‘when an employee seeks treatment ot her than that provided by the emp loyer or ordered by the [C]ommission, he or she does so a t his or her own peril and ris ks not being reimbursed.’” H.J. Holz & Son v. Dumas-Thayer, 37 Va. App. 645, 653-54, 561 S.E.2d 6, 10 (2002) (quoting Shenandoah Prods., Inc. v. Whitlock, 15 Va. App. 207, 212, 421 S.E.2d 483, 486 (1986)). In Whitlock, this Court established a tripartite test for deter mining when the “other good reasons” exception applies. App lication of the statutory excep tion requires the record to support that (1) the claimant acted i n good faith in seeking the unauth orized treatment; (2) “the treatment provided by the employer was inadeq uate treatment for the emplo yee’s condition[,]” and (3) “the unauthorized treatment . . . was medically reasonable and neces sary.” 4 Whitlock, 15 Va. App. at 212, 421 S.E.2d at 486; see also Dumas -Thayer, 37 Va. App. at 6 53, 561 S.E.2d at 10. Whether the treatment provided by the employer was inadequate and the unauthorized medical treatment was medicall y reasonable and necessary are mi xed questions of law and fact. Dumas-Thayer, 37 Va. App. at 654-55, 561 S.E.2d at 11. “Thus, the [C]ommission’s conclusions regarding the necessity of the alternative treatmen t and inadequacy of the treatment actually provided are not bi nding on appeal.” Id. at 655, 561 S.E.2d at 11. In reviewing both issues, “we are guided by the prin ciple that the opinion of the treating physicia n is entitled to great weight.” Id. “However, ‘ medical evidence is not necessa rily conclusive[; i t] is subject to the [C]ommission’s considerati on and weighing.’ ” Id. (first al teration in original) (quoting

4 We note that neither the deputy commissioner nor the Commissio n made findings on the “good faith” prong of the Whitlock test. Consequently, we confine our review to the remaining two Whitlock factors.- 8 - Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E .2d 213, 215 (1991)). We review the relevant Wh itlock factors below. A. Adequacy of Treatment Claimant argues Dr. Mecherikunnel ’s authorized medical treatmen t was inadequate for two reasons. First, cla imant’s lack of improvement under Dr. M echerikunnel’s care demonstrated the inadequacy of his treatment. Claimant points to Dr. Ducic’s removal of two putative neuromas as evidence that claimant suffered from an ov erlooked condition which negatively impacted his ability t o recover and prevented Dr. Me cherikunnel’s recommended treatment from improving his condition. Second, claimant point s to his “huge improvement” after Dr. Ducic’s surgery as ev idence that Dr. Mecherikunnel’s authorized treatment was inadequate. The record supports the Commissi on’s finding that claimant did not follow Dr. Mecherikunnel’s recommended t reatment. Claimant admitted h e did not want to pursue modifying his pain medication. F urther, while claimant was not certain he had his spinal cord stimulator adjusted after last seeing Dr. Mecherikunnel, the re cord does not indicate such an adjustment was made. Instead, claimant consulted Dr. Ducic, wi thout authorization, approximately a week after he r eceived Dr. Mech erikunnel’s reco mmendation. Just one month after the initial consultati on, Dr. Ducic performed the unautho rized surgery. The Commission’s finding that claimant did not follow his treat ing physician’s recommended treatment is supported by credible evidence and thu s binding upon us on appeal. Marshall, 37 Va. App. at 90, 554 S.E.2d at 107. Since claimant did not follow that course of treatment, and did not persuasivel y explain why t hat treatment could not have helped, there is no basis upon which we can say that the treatment provided by the employer through- 9 - Dr. Mecherikunnel was inadequate for claimant’s condition. See Whitlock, 15 Va. App. at 212, 421 S.E.2d at 486. The Commission was entitled to re ject claimant’s assertion that he experienced “huge improvement” after Dr. Ducic’s surgery and that such improvemen t demonstrated the inadequacy of Dr. Mecherikunnel’ s treatment. While claimant ex perienced some improvement after Dr. Ducic performed surger y, his right arm still “act[ed] up.” Six months later, during a follow-up visit, claimant reported that firearms practice cause d his right hand to become “quite aggravated” by weeks-long pain. Cla imant subsequently filed ad ditional claims based upon these complications. During another follow-up examination, ten months after Dr. Ducic performed surgery, claimant reported shooting pain and exhibite d deep pain, and Dr. Ducic concluded claimant’s condition h ad regressed. Claimant also co ntinued missing work due to his symptoms, reporting work-related arm pain to pain management sp ecialists, and requesting medication for “flare[-]ups.” Thus, the record does not suppor t claimant’s assertion that Dr. Ducic’s surgery resulted i n “huge improvement” in claimant’ s condition, and there is no basis for concluding that claim ant’s post-operative condition i n any way reflects upon the adequacy of Dr. Mecherikunnel’s authorized medical treatment. Instead, the record supports Dr. Mecherikunnel’s medical opinio n that some or all of claiman t’s ongoing symptoms are the consequence of psychological facto rs, rather than purely somati c issues for which inadequate treatment was rendered. Because claimant did not follow hi s authorized medical provider ’s recommended course of treatment, and because Dr. Duc ic’s surgery failed to resolve claimant’s symptoms and thus cannot speak to the efficacy of Dr . Mecherikunnel’s treatment, we affirm the Commission’s finding on the question of the ade quacy of the treatment provid ed by employer.- 10 - B. Medically Reasonable and Necessary Treatment Claimant argues that the relief he experienced after Dr. Ducic’ s unauthorized surgery demonstrates that the surgery w as medically reasonable and nece ssary. Specifically, claimant points to his significant post- operative reduction in pain and need for pain medication as dispositive evidence. Here, as above, we note that while claimant experienced some im provement immediately after his unauthorized surger y, that improvement proved fleetin g. Following Dr. Ducic’s surgery, claimant continued to expe rience substantial pain and debility from, and further compensable consequences of, hi s 2006 injury. Claimant also co ntinued to seek new medication for “flare[-]ups.” Thus, we conc lude that any short-term, post -operative reduction in claimant’s pain or need for pain medication i s not dispositive of whether Dr. Ducic’s surgery was medically reasonable and necessary. See Whitlock, 15 Va. App. at 212, 42 1 S.E.2d at 486. We also note the Commission credi ted Dr. Mecherikunnel’s opinio n that Dr. Ducic’s surgery was not reasonable or necessary. We will not second-gu ess this credibility determination; our “well-establis hed standard” of review does n ot permit us to “‘make [our] own determination of the credibil ity of witnesses.’” Layne v. Cris t Elec. Contr., Inc., 64 Va. App. 342, 345, 768 S.E.2d 261, 262 (2015) (alterati on in original) ( quoting McKellar v. Northrop Grumman Shipbuilding Inc., 63 Va. App. 448, 451, 758 S.E.2d 104 , 105 (2014)). Dr. Mecherikunnel opined that be fore performing surgery, a phys ician acting reasonably would have reviewed the patien t’s medical history, and Dr. Duci c testified he conducted no such review. Such a physician also woul d have ordered pre-operative diagnostic tests, and Dr. Ducic testified he ordered no such t ests. Such a physician also woul d have sent the putative neuromas he removed to a pathology lab for examination, and Dr. Ducic te stified he did not do this.- 11 - Dr. Mecherikunnel also opined, as claimant’s treating physician , that claimant’s pain resulted from psychopathological factors, not a physiological c ondition. Such factors, by definition, would render surgical intervention not medically re asonable and necessary. Because the treating physician’s opinion or dinarily “is entitled to gre at weight,” Dumas-Thayer, 37 Va. App. at 655, 561 S.E.2d at 11, the C ommission was entitled to rely upon Dr. Mecherikunnel’s opinion i f they found it credible. For these reasons, we affirm the Commission’s conclusion that t he unauthorized treatment received by claimant was not medically reasonable and necessary. III. CONCLUSION The record does not support that the treatment provided to cla imant by employer was inadequate treatment or that th e unauthorized treatment receive d by claimant was medically reasonable and necessary. Thus, the “other good reasons” excep tion to Code § 65.2-603(C) does not apply. We therefore affirm the Commission’s ruling that cl aimant’s unauthorized medical treatment was not compensable by employer. Affirmed.