COURT OF APPEALS OF VIRGINIA 

Present: Judges AtLee, Malveaux and Senior Judge Annunziata 

Argued by teleconference 

WADE PROTUS PHILLIPS 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1963-16-4 JUDGE MARY 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. Bliley; Siciliano, Ellis, Dyer & 

Boccarosse PLC, on brief), for appellee. 

 Wade Phillips (“claimant”) appeals a decision of the Virginia Workers’ Compensation 

Commission (“the Commission”) finding that treatment he received from an unauthorized medical 

provider was not compensable by Loudoun County (“employer”). Specifically, claimant argues the 

Commission erred in finding he did not demonstrate a “good reason” to have a surgery performed 

by a non-treating physician. For the reasons that follow, we affirm the Commission’s decision. 

I. BACKGROUND 

 This Court views the evidence in the light most favorable to employer, 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 wrist struck a hard surface. Claimant 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED 
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experienced wrist and forearm pain which eventually spread to his shoulder and neck. Claimant 

was awarded temporary total disability benefits and lifetime medical 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 Mecherikunnel examined claimant. Dr. Mecherikunnel, who 

became claimant’s treating physician, diagnosed a neuroma in claimant’s right forearm. 

Dr. Mecherikunnel reviewed claimant’s medical records and noted that claimant had sought pain 

management from several physicians and received different medications from each of them. 

That September, Dr. Mecherikunnel 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. Claimant then noticed an increase in pain and a decline in the mobility 

and functionality of his right arm. 

By mid-2013, claimant was suffering from incessant arm pain. He also complained of 

numbness and tingling in the extremity. Subsequently, Dr. Lee Selznick implanted a spinal cord 

stimulator in claimant’s back. The stimulator provided significant pain relief for two to three 

months. After this period of time, claimant’s pain began to increase while his right arm’s 

strength and dexterity began to deteriorate. Although the stimulator continued to provide some 

relief, claimant lost strength in his arm until he could no longer raise it to direct traffic. 

 Dr. Mecherikunnel examined claimant in September 2014. He noted claimaint’s ongoing 

problems with pain and loss of right arm functionality and that claimant appeared stressed, 

 1

 That award terminated on December 13, 2006. A stipulated order entered by the 

Commission on March 12, 2009, resolved claimant’s subsequent claims for benefits filed in 

February and March 2008. The parties stipulated that claimant had suffered a change in 

condition for which he was entitled to a resumption of temporary total disability benefits from 

January 29, 2008 until October 26, 2008. Claimant also received permanent partial disability 

payments from January 13, 2011 through May 4, 2011. 
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shaky, and sweaty. Claimant kept his right hand in his pocket, rubbed it constantly, and showed 

signs of extensive nail biting on that hand. Dr. Mecherikunnel recommended that claimant check 

with his pain management specialists 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 and hand pain. He opined that 

claimant should have a case manager consider a psychiatric evaluation 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 acknowledged Dr. Mecherikunnel referred him back to his pain management 

specialists for adjustments to his pain medication, but stated that he “didn’t want to do that.” He 

also testified that he thought his spinal cord stimulator was adjusted after the examination, but 

that he could not be sure this was done. 

Roughly one week later, following a referral by his family physician, 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 reviewing claimant’s medical records or 

discussing claimant’s medical history with Dr. Mecherikunnel, Dr. Ducic determined that he 

could intervene surgically to help claimant. Dr. Ducic instructed claimant to contact his 

workers’ compensation case manager to obtain approval for the surgery, and told claimant that 

until the surgery he should continue his current course of treatment. Claimant filed a claim for 

benefits seeking “approval of wrist surgery” in October 2014. 

One month after his examination by Dr. Ducic, claimant returned for the operation. In 

the interim, Dr. Ducic neither spoke with Dr. Mecherikunnel nor examined claimant’s medical 
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records. During the surgery, Dr. Ducic removed two putative neuromas, which he did not send 

to a pathologist, and excised the radial sensory nerve. 

After this surgery, claimant experienced 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 practice, his hand was “quite aggravated” by pain which 

persisted for weeks.2 During another follow-up examination that August, claimant reported 

intermittent shooting pain and experienced deep pain at several points on his right forearm. 

Dr. Ducic concluded that claimant had clearly regressed since his previous visit. 

In October 2015, claimant visited Dr. Alok Gopal for pain and medication counseling. 

Dr. Gopal noted that claimant continued 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 reported 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 take for such “flare[-]ups.” 

Prior to a hearing on claimant’s claim for Dr. Ducic’s surgery, Dr. Mecherikunnel 

prepared a letter in which he opined the surgery was not necessary, reasonable, or causally 

related to claimant’s work injury. Dr. Mecherikunnel criticized Dr. Ducic for operating without 

reviewing claimant’s medical history, stating that it was his belief that before operating, any 

reasonable physician would have reviewed the patient’s history and would have wanted to know 

why previous treatments had failed to provide relief. Dr. Mecherikunnel concluded his letter by 

opining that there was “clear psychopathology” in claimant’s pain presentation. He noted that 

 2

 Claimant filed two additional claims in 2015, each of which alleged either compensable 

consequences of his 2006 injury or new work-related injuries arising from firing a firearm. The 

parties stipulated to the deputy commissioner that claimant sustained compensable consequences 

of his 2006 injury while firing a firearm. 
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claimant’s medical records indicated a pattern of claimant seeking treatment from different 

practitioners, reporting improvement for some time, and then moving 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 fingers were inconsistent with a 

neuropathic pain pattern. 

After an evidentiary hearing on January 7, 2016, the deptuty commissioner dismissed 

claimant’s claim for the surgery performed by Dr. Ducic. Claimant requested review by the full 

Commission. 

The full Commission, with one dissent, determined that claimant did not meet the 

requirements for finding unauthorized medical treatment compensable by an employer. The 

Commision found that when Dr. Mecherikunnel last treated claimant, he recommended that 

claimant seek adjustments to his medication and spinal cord stimulator. Since claimant failed to 

follow his physician’s treatment recommendations, however, it was not possible to find that 

Dr. Mecherikunnel’s recommended treatment was inadequate. Further, the Commission noted 

that claimant’s pain and other symptoms did not permanently resolve after Dr. Ducic’s surgery. 

The Commission also credited Dr. Mecherikunnel’s opinion, as claimant’s treating physician, 

that claimant had established a pattern of seeking treatment from 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 necessary and that his performance of surgery, without a thorough 

review of claimant’s medical records, was “unreasonable in itself.” 
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II. ANALYSIS 

Claimant argues that his treatment by an unauthorized medical provider 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 disagree. 

“According to well established principles, ‘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 104, 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 finding.” 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 review, we may set aside factual findings of 

the Commission only where they are “plainly wrong and without evidence to support them.” 

Owens v. York Fire & Rescue, 38 Va. App. 354, 359, 564 S.E.2d 150, 152 (2002). 

 The Virginia Workers’ Compensation Act provides that, where an employee 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 authorized medical treatment provider—that is, “a physician chosen by 

the injured employee from a panel of . . . physicians selected by the employer.” Code 

§ 65.2-603(A). However, an employee may seek employer compensation for treatment rendered 

 3

 On brief, claimant also argues his unauthorized medical treatment was compensable by 

employer because he sought that treatment when faced with a medical emergency. However, 

claimant’s assignment of error encompasses only the “other good reasons” exception of Code 

§ 65.2-603(C), not the emergency treatment 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 appellant’s express ‘assignment of error’ in his brief”). Thus, we 

do not consider claimant’s emergency treatment argument. 
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by an unauthorized physician in an emergency, due to the employer’s failure to provide medical 

care, or “for other good reasons.” Code § 65.2-603(C). This Court has “emphasized that 

‘reimbursement for unauthorized medical treatment should be the rare exception’ and that ‘when 

an employee seeks treatment other than that provided by the employer or ordered by the 

[C]ommission, he or she does so at his or her own peril and risks 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 determining when the “other good 

reasons” exception applies. Application of the statutory exception requires the record to support 

that (1) the claimant acted in good faith in seeking the unauthorized treatment; (2) “the treatment 

provided by the employer was inadequate treatment for the employee’s condition[,]” and (3) “the 

unauthorized treatment . . . was medically reasonable and necessary.”4

 Whitlock, 15 Va. App. at 

212, 421 S.E.2d at 486; see also Dumas-Thayer, 37 Va. App. at 653, 561 S.E.2d at 10. 

Whether the treatment provided by the employer was inadequate and the unauthorized 

medical treatment was medically reasonable and necessary are mixed 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 treatment and inadequacy of the treatment 

actually provided are not binding on appeal.” Id. at 655, 561 S.E.2d at 11. In reviewing both 

issues, “we are guided by the principle that the opinion of the treating physician is entitled to 

great weight.” Id. “However, ‘medical evidence is not necessarily conclusive[; it] is subject to 

the [C]ommission’s consideration and weighing.’” Id. (first alteration in original) (quoting 

 4

 We note that neither the deputy commissioner nor the Commission made findings on 

the “good faith” prong of the Whitlock test. Consequently, we confine our review to the 

remaining two Whitlock factors. 
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Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991)). We 

review the relevant Whitlock factors below. 

A. Adequacy of Treatment 

Claimant argues Dr. Mecherikunnel’s authorized medical treatment was inadequate for 

two reasons. First, claimant’s lack of improvement under Dr. Mecherikunnel’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 overlooked condition which 

negatively impacted his ability to recover and prevented Dr. Mecherikunnel’s recommended 

treatment from improving his condition. Second, claimant points to his “huge improvement” 

after Dr. Ducic’s surgery as evidence that Dr. Mecherikunnel’s authorized treatment was 

inadequate. 

The record supports the Commission’s finding that claimant did not follow 

Dr. Mecherikunnel’s recommended treatment. Claimant admitted he did not want to pursue 

modifying his pain medication. Further, while claimant was not certain he had his spinal cord 

stimulator adjusted after last seeing Dr. Mecherikunnel, the record does not indicate such an 

adjustment was made. Instead, claimant consulted Dr. Ducic, without authorization, 

approximately a week after he received Dr. Mecherikunnel’s recommendation. Just one month 

after the initial consultation, Dr. Ducic performed the unauthorized surgery. 

The Commission’s finding that claimant did not follow his treating physician’s 

recommended treatment is supported by credible evidence and thus 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 persuasively explain why that treatment could not have helped, there is no 

basis upon which we can say that the treatment provided by the employer through 
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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 reject claimant’s assertion that he experienced “huge 

improvement” after Dr. Ducic’s surgery and that such improvement demonstrated the 

inadequacy of Dr. Mecherikunnel’s treatment. While claimant experienced some improvement 

after Dr. Ducic performed surgery, his right arm still “act[ed] up.” Six months later, during a 

follow-up visit, claimant reported that firearms practice caused his right hand to become “quite 

aggravated” by weeks-long pain. Claimant subsequently filed additional claims based upon 

these complications. During another follow-up examination, ten months after Dr. Ducic 

performed surgery, claimant reported shooting pain and exhibited deep pain, and Dr. Ducic 

concluded claimant’s condition had regressed. Claimant also continued missing work due to his 

symptoms, reporting work-related arm pain to pain management specialists, and requesting 

medication for “flare[-]ups.” Thus, the record does not support claimant’s assertion that 

Dr. Ducic’s surgery resulted in “huge improvement” in claimant’s condition, and there is no 

basis for concluding that claimant’s post-operative condition in any way reflects upon the 

adequacy of Dr. Mecherikunnel’s authorized medical treatment. Instead, the record supports 

Dr. Mecherikunnel’s medical opinion that some or all of claimant’s ongoing symptoms are the 

consequence of psychological factors, rather than purely somatic issues for which inadequate 

treatment was rendered. 

Because claimant did not follow his authorized medical provider’s recommended course 

of treatment, and because Dr. Ducic’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 adequacy of the treatment provided by employer. 
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B. Medically Reasonable and Necessary Treatment 

Claimant argues that the relief he experienced after Dr. Ducic’s unauthorized surgery 

demonstrates that the surgery was medically reasonable and necessary. 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 improvement immediately 

after his unauthorized surgery, that improvement proved fleeting. Following Dr. Ducic’s 

surgery, claimant continued to experience substantial pain and debility from, and further 

compensable consequences of, his 2006 injury. Claimant also continued to seek new medication 

for “flare[-]ups.” Thus, we conclude that any short-term, post-operative reduction in claimant’s 

pain or need for pain medication is not dispositive of whether Dr. Ducic’s surgery was medically 

reasonable and necessary. See Whitlock, 15 Va. App. at 212, 421 S.E.2d at 486. 

We also note the Commission credited Dr. Mecherikunnel’s opinion that Dr. Ducic’s 

surgery was not reasonable or necessary. We will not second-guess this credibility 

determination; our “well-established standard” of review does not permit us to “‘make [our] own 

determination of the credibility of witnesses.’” Layne v. Crist Elec. Contr., Inc., 64 Va. App. 

342, 345, 768 S.E.2d 261, 262 (2015) (alteration 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 before performing surgery, a physician acting reasonably 

would have reviewed the patient’s medical history, and Dr. Ducic testified he conducted no such 

review. Such a physician also would have ordered pre-operative diagnostic tests, and Dr. Ducic 

testified he ordered no such tests. Such a physician also would have sent the putative neuromas 

he removed to a pathology lab for examination, and Dr. Ducic testified he did not do this. 
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Dr. Mecherikunnel also opined, as claimant’s treating physician, that claimant’s pain 

resulted from psychopathological factors, not a physiological condition. Such factors, by 

definition, would render surgical intervention not medically reasonable and necessary. Because 

the treating physician’s opinion ordinarily “is entitled to great weight,” Dumas-Thayer, 37 

Va. App. at 655, 561 S.E.2d at 11, the Commission was entitled to rely upon 

Dr. Mecherikunnel’s opinion if they found it credible. 

For these reasons, we affirm the Commission’s conclusion that the unauthorized 

treatment received by claimant was not medically reasonable and necessary. 

III. CONCLUSION 

 The record does not support that the treatment provided to claimant by employer was 

inadequate treatment or that the unauthorized treatment received by claimant was medically 

reasonable and necessary. Thus, the “other good reasons” exception to Code § 65.2-603(C) does 

not apply. We therefore affirm the Commission’s ruling that claimant’s unauthorized medical 

treatment was not compensable by employer. 

Affirmed.