COURT OF APPEALS OF VIRGINIA
Present: Judges Al ston, Chafin and Senior Judge Haley Argued at Fredericksburg, Virginia

PAUL M. PACHECO MEMORANDUM OPINION * BY v. Record No . 0315-17-4 JUDGE JAMES W. HALEY, JR. NOVEMBER 28, 2017 J.P. MASONRY, INC. AND ACCIDENTAL FUND NATIONAL INS URANCE COMPANY

FROM THE VIRGINIA WORKERS ’ COMPENSATION COMMISSION Bryan G. Bosta (Becker, Kellog g & Berry, PC, on brief), for appellant. Rebekah M. Bofinger (Franklin & Prokopik, P.C., on brief), fo r appellees.

Paul Pacheco (claimant) maintains that the Workers’ Compensati on Commission erred in finding that a Endolite Blade XT pr osthetic device (a running b lade) was not medically necessary. We affirm the Commission’s ruling. The Workers’ Compensation Act “is highly remedial” and should be “liberally construed to advance its purpose of compensating employees for accidental injuries resulting from the hazards of the employment.” Masonite Holdings, Inc. v. Cubbage , 53 Va. App. 13, 19-20, 668 S.E.2d 809, 812 (2008) (quoting Corporate Res. Mgmt. v. Souther s, 51 Va. App. 118, 126, 655 S.E.2d 34, 38 (2008) ( en banc )). However, under well-establis hed principles, this Court construes the evidence in the r ecord, and all reasonable infere nces, in the light most favorable to

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - the party that prevailed below, w hich in this case is the emplo yer. See Stillwell v. Lewis Tree Serv., Inc., 47 Va. App. 471, 474, 624 S.E.2d 681, 682 (2006). So viewed, the evidence establis hed that claimant was injured in a work-related accident on March 2, 2012, which resulted in a below-the-knee amputationof his left foot. He was awarded lifetime medical benefits and temporary partial disabil ity benefits. He also was given a prosthesis to replace his le ft foot and placed on light-duty wo rk, which included restrictions of no frequent standing or walking. Cla imant had been physically act ive before his accident, running five days a week and participating in soccer, tennis, and baske tball, as well as biking, climbing, skiing, snowboarding, and rafting, bu t he was unable to continu e these activities after the accident. On December 10, 2014, claimant sought approval for new prosthet ic devices, an Elan Boot and an Endolite Blade XT. Claimant’s treating physician, Dr. Aaron Jones, recommended the Elan Boot because it “acts more like the human ankle and fo ot in that it moves up and down and has sensors to assist in une ven terrain and on stairs[,] . . . which would make walking easier and more efficient.” Dr. Jones said the Elan Boot was medicall y necessary because the prosthetic device claimant was then using had “a rigid ankle,” which “over time” would “put more stress on his knees, hips a nd back leading to pain from ea rly onset osteoarthritis.” Dr. Jones said claimant “would also benefit” from the Endolite Blade XT because it was “built for cross training activities, ” such as “working out at the gym , or running a marathon,” and “would improve [claimant’s] quality of life.” Claimant’s prosthetist, Mr. Danie l Mejia, also recommended clai mant be fitted with an “everyday prosthesis” having an E lan ankle and a “running/sport s leg with an Endolite Blade XT” for sports because the ever yday leg was subject to breakage if used for spor ting activities.- 3 - An orthopedic surgeon, Dr. Steve n Neufeld, conducted an indepen dent medical evaluation on July 27, 2015, and concl uded that an Endolite Bla de XT was “only one way” to enable claimant to return to a s “high a functi on as possible (c loser to his pre-i njury state),” but that a running blade was “not med ically necessary for [claimant ] to return to his stated pre-injury activities.” Claimant’s employer agreed t o authorize the Elan Boot, but oppo sed the request for the Endolite Blade XT on the grounds that it was not reasonable or necessary medical treatment. 1 After a hearing, a deputy commissi oner determined that although a running blade “may be reasonable,” there was no proof it was medically necessary. Th e deputy commissioner further said “[t]he purpose of the Act i s to restore the employee’s goo d health so that he may return to useful employment, not to return h im to every pre-injury activi ty.” The full Commission affirmed, and claimant appealed to this Court. 2 Code § 65.2-603(A)(1) provides that “[a]s long as necessary af ter an accident, the employer shall furnish or cause t o be furnished, free of charge to the injured employee, a physician . . . and such other necessary medical attention.” T he statute further provides that where the employee loses a leg or foot as a result of the accid ent, as in this case, “the employer shall furnish prosthetic or orthotic appliances, . . . proper f itting and maintenance thereof, and training in the use thereof, as the nature of the injury may re quire.” Claimant argues that the Commission erred in fin ding the running blade claimant requeste d was not needed to return him to useful employment and thus was not medically necessary. Cla imant contends the running

1 The employer also agreed to com pensate claimant for additional injuries to his right ankle and foot as consequen ces of his original injury.

2 In his notice of appeal, claima nt challenged the sufficiency o f the evidence supporting the Commission’s ruling, but he has not pursued the claim in hi s opening brief. Thus, it is waived. See Rule 5A:20(e).- 4 - blade was medically necessary be cause he was entitled to be res tored as closely as possible to his pre-injury functioning. He asserts his employer was obligated to provide the running blade because his treating physician had determined it would improve the overall quality of claimant’s life. “Decisions of the commission as to questions of fact, if suppor ted by credible evidence, are conclusive and binding upon this Court.” VFP, Inc. v. Shep herd, 39 Va. App. 289, 292, 572 S.E.2d 510, 511 (2002) (quoting WLR Foods v. Cardosa, 26 Va. Ap p. 220, 230, 494 S.E.2d 147, 152 (1997)). “[W]hether the disput ed medical treatment was nec essary within the meaning of Code § 65.2-603 is a mixed question of law and fact.” Portsmou th (City of) Sch. Bd. v. Harris, 58 Va. App. 556, 563, 712 S.E.2d 23, 26 (2011) (quoting Lynchbu rg Foundry Co. v. Goad, 15 Va. App. 701, 712-13, 427 S.E.2d 215, 217 (1993)). As such, we review the Commission’s rulings de novo . See id. An employer has a mandatory, sta tutory duty to compensate an in jured employee for medical expenses causally related to the injury, but any recomm ended treatment must be “reasonable, necessary, and relat ed to the industrial accident. ” Dunrite Transmission v. Sheetz, 18 Va. App. 647, 649, 446 S.E.2d 473, 474 (1994). When a claim ant requests specific medical treatment, he must demonstrate th at the treatment “is causally related to the accident, is necessary for treatment of his co mpensable injury, and is recom mended by an authorized treating physician.” Harris, 58 Va. App. at 563, 712 S.E.2d at 26. Claimant has not made the requi site showing because he failed t o prove the Endolite Blade XT was medically necessa ry. See Haftsavar v. All Am. Car pet & Rugs, Inc., 59 Va. App. 593, 599, 721 S.E.2d 804, 807 (2012) (stating claimant “must pr ove by a preponderance of the evidence that disputed treatment was medically necessary”). Cl aimant testified at the hearing before the deputy commissioner that a running blade would enabl e him to build muscle mass and- 5 - strength in his left leg, but neither claimant’s treating physi cian nor his prosthetist cited these factors in their recommendations . Dr. Jones said merely that t he blade “would be extremely beneficial” in improving claiman t’s quality of life, and Mejia said the blade was needed only for sports activities; but they did notsay a running blade was med ically necessary. In contrast, Dr. Jones provided specific reasons that the Elan Boot was medi cally necessary “to improve [claimant’s] gait while decrea sing the stress on his sound side ” and would aid in preventing “early onset osteoarthritis.” Dr. Neufeld, who independently e valuated claimant, also opined that a running blade was not medically necessary. He further stated the Endolite Blade XT was “only one way” to return claimant to a level closer to his pre-injury functioning and said he “would defer to a certified prosthetist for other recommendations.” The stream of evidence can rise no higher than its headwaters. Here, those headwaters are Dr. Jones’ report. He contra sted in separate statements wh at was medically necessary and what was beneficial. Thus, cla imant did not prove the running blade he requested was medically necessary, and his employer was not financially obligated to pr ovide the blade. 3 See Haftsavar, 59 Va. App. at 602-03, 721 S.E.2d at 809 (holding that employer was not required to pay for employee’s heart surgery, the nece ssity for which was discovere d as employee was preparing for surgery connected to his compen sable work injury, but was not c ausally related to his work injury); ARA Servs. v. Swift, 22 Va. App. 202, 208, 468 S.E.2d 682, 685 (1996) (holding that

3 In support of his argument, claimant relies on Vazques v. Henr y Cty. Pallet Co., VWC File No. 217-62-06, 2006 VA Wrk. Co mp. LEXIS 678 (Va. Wrk. Comp . Aug. 2, 2006), in which the Commission ruled that the empl oyer was responsible for prov iding the injured employee with a myoelectric arm. The medical evidence contained in the recor d sufficiently proved that the arm was a reasonable and necessary treatment because the employ ee had experienced residual limb pain and limited range of motion with his initial prosthet ic arm. Claimant’s request for a new prosthesis that did not have a rigid ankle, the Elan Boot, was approved because it was based on medical necessity, but his re quest for a running blade was b ased on his desire to participate in the same sports he participated in before his injury. Because there was no evidence a running blade was medically necessa ry, Vazques is inapposite.- 6 - employer had to pay for home exerc ise station for injured emplo yee because employee’s doctor prescribed device as medically n ecessary); Volvo White Truck Co rp. v. Hedge, 1 Va. App. 195, 200, 336 S.E.2d 903, 906 (1985) (holding that where employee su ffered head injury at work that affected his vision, employer had t o pay for employee’s subsequ ent eye examination and new glasses because they were causa lly related to the injury and me dically necessary). Furthermore, the purpose of worke rs’ compensation is not to res tore the injured employee completely to his pre-injury sta te, but to compensate him for i njuries that “either actually or presumptively produce disabilit y and thereby presumably affect earning power . . . .” 1-1 Larson’s Workers’ Compensation Law § 1.03 (2017). See Richmond Mem’l Hosp. v. Allen, 3 Va. App. 314, 318, 349 S.E.2d 419, 422 (1986) (stating that one purpose of Code § 65.2-603 is “to restore the employee’s good h ealth ‘so that he may return t o useful employment as soon as possible’” (quoting Immer & Co. v. Brosnahan, 207 Va. 720, 724, 152 S.E.2d 254, 257 (1967))). Providing a running blade to enable claimant to participate in sporting activities falls “outside the range of benefits provided” in the workers’ compensation statut es. Salem v. Colegrove, 228 Va. 290, 294, 321 S.E.2d 654, 656 (1984) (holding that where injure d employee’s doctor had recommended “job retraining,” emp loyee was not entitled to reim bursement for his expenses because college program employee wanted to pursue exceeded doct or’s general recommendation and doctor had never suggested such a program was medically nec essary); see also Harris, 58 Va. App. at 560, 566-67, 712 S.E.2d at 24, 28 (holding that emp loyer was not required to provide employee with a six-person hom e spa pool based on opinion of em ployee’s treating physician that employee “would benefit from a spa pool/heater . . . to de crease pain”).- 7 - One cannot but be empathetic to t he grievous injury claimant su ffered. But empathy does not allow a court to expand legis lative parameters and the prio r adjudications of the scope of those parameters. Accordingly, w e affirm the Commission’s ruli ng. Affirmed.