COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Agee 

Argued at Alexandria, Virginia 

FAIRFAX COUNTY SCHOOL BOARD 

 MEMORANDUM OPINION* BY 

v. Record No. 1159-02-4 JUDGE LARRY G. ELDER 

 NOVEMBER 19, 2002 

SALLY R. FISH 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Michael N. Salveson (Hunton & Williams, on 

briefs), for appellant. 

 (Sally R. Fish, pro se, on brief). Appellee 

submiting on brief. 

 The Fairfax County School Board (employer) appeals from a 

decision of the Workers' Compensation Commission (the 

commission) holding that Sally R. Fish (claimant) is entitled to 

medical benefits for ongoing palliative treatment. On appeal, 

employer contends that (1) the commission erroneously concluded 

claimant's fibromyalgia is causally related to her industrial 

injury by accident, (2) the commission failed to make a finding 

regarding whether ongoing treatment was "reasonable and 

necessary medical attention" within the meaning of Code 

§ 65.2-603, and (3) the evidence does not support a finding that 

it was "reasonable and necessary." We hold the commission 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
- 2 -

implicitly found the treatment was medically necessary and that 

credible evidence supported both that finding and the finding 

that claimant's fibromyalgia was causally related to her 

compensable industrial injury. Thus, we affirm. 

 On appeal of a decision of the commission, we construe the 

evidence in the light most favorable to the party prevailing 

below, and we must uphold the commission's findings of fact if 

the record contains credible evidence to support them. See, 

e.g., Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 712, 427 

S.E.2d 215, 217 (1993). 

 Code § 65.2-603(A)(1) provides that for "[a]s long as 

necessary after a [compensable industrial] accident, the 

employer shall furnish or cause to be furnished, free of charge 

to the injured employee, a physician chosen [in the manner 

prescribed by the Workers' Compensation Act] and such other 

necessary medical attention." Whether the employer is 

responsible for medical expenses under this Code section 

depends, inter alia, upon "(1) whether the medical service was 

causally related to the industrial injury; [and] (2) whether 

such other medical attention was necessary." Volvo White Truck 

Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). 

A claimant bears the burden of proof on these issues by a 

preponderance of the evidence. McGregor v. Crystal Food Corp., 

1 Va. App. 507, 508, 339 S.E.2d 917, 918 (1986). As with any 

medical determination to be made under the Act, the opinion of 
- 3 -

the treating physician is entitled to great weight. See, e.g., 

Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 

S.E.2d 570, 572 (1986). 

A. 

CAUSATION 

 An employer's liability for an industrial injury extends to 

"'all the medical consequences and sequelae that flow from the 

primary injury.'" American Filtrona Co. v. Hanford, 16 Va. App. 

159, 163, 428 S.E.2d 511, 513 (1993) (quoting 1 Arthur Larson, 

The Law of Workmen's Compensation § 13.11 (1992)). "[A] 

'question [of causation] raised by "conflicting expert medical 

opinions" is one of fact.'" Georgia-Pacific Corp. v. Robinson, 

32 Va. App. 1, 5, 526 S.E.2d 267, 268 (2000) (quoting Eccon 

Constr. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799 

(1981)). However, once that conflict has been resolved in favor 

of the party prevailing below, whether the evidence is 

sufficient to prove causation is a question of law subject to 

independent review. See Morris v. Morris, 238 Va. 578, 579, 385 

S.E.2d 858, 865 (1985). 

 Here, the commission was entitled to accept the opinions of 

claimant's treating physicians, Drs. A. Bruce Thomas, II, and 

Thomas M. Fogarty, over those of employer's experts, Drs. Brian 

Schulman and Roger V. Gisolfi. Further, the opinions of 

Drs. Thomas and Fogarty, viewed in conjunction with the record 

as a whole, were sufficient to support the commission's finding 
- 4 -

that claimant's fibromyalgia was a "'medical consequence[] . . . 

flow[ing] from [her] primary injury.'" Hanford, 16 Va. App. at 

163, 428 S.E.2d at 513 (quoting 1 Larson, supra, § 13.11). 

 Dr. Thomas is board certified in physical medicine and 

rehabilitation with a focus on pain management and has several 

years experience in treating patients with fibromyalgia. 

Dr. Thomas and his partner treated claimant for her fibromyalgia 

for three years before the present proceedings began. 

Dr. Thomas explained that fibromyalgia is "a complex, chronic 

condition, which causes diffuse pain in the body's muscles, 

tendons, ligaments and other soft tissues and often [causes] 

fatigue." He further explained that fibromyalgia is commonly 

triggered by a physical trauma to the body, such as the one 

claimant experienced on April 29, 1987. 

Dr. Thomas opined, based on his treatment of claimant, 

"[i]t is medically probable that [claimant's] fibromyalgia was 

caused by her 1987 accident," and "to a reasonable degree of 

medical certainty, I can attribute [claimant's] present 

condition to her accident in 1987." Dr. Thomas noted, as 

supported by claimant's medical records, that claimant was 

diagnosed with myofascial pain, a component of fibromyalgia, 

shortly following her 1987 accident. Dr. Thomas noted that 

fibromyalgia is a difficult condition to diagnose and that 

claimant could not have received a diagnosis of fibromyalgia 
- 5 -

when she first displayed symptoms in 1987 because the diagnostic 

criteria for the condition were not established until 1990. 

 Dr. Fogarty rendered a similar opinion. Dr. Fogarty is 

board certified in internal medicine and psychiatry, treated 

claimant for four years prior to these proceedings, and reviewed 

claimant's medical records prior to rendering his opinion 

regarding her condition. Dr. Fogarty noted that, in his 

treatment of claimant, he observed "muscular spasm related to 

her fibromyalgia [which] was objective and palpable." He 

further observed that claimant's medical records contain a 1987 

diagnosis of myofascial pain syndrome and "clearly [show] 

evidence of a myofascial pain syndrome which dates to [her 

compensable industrial] injury in 1987. Her pain became severe 

within months of her fall at work, and her pain began to spread 

within weeks of the incident." Dr. Fogarty explained that 

fibromyalgia "is a term which is frequently interchanged with 

myofascial pain" and that claimant received an express diagnosis 

of fibromyalgia from Dr. Katherine Maurath in 1996. 

Ultimately, Dr. Fogarty opined that claimant's work injury 

of April 29, 1987, "continued and progressed into a more 

generalized myofascial or fibromyalgia pain syndrome." He noted 

that "the weight of the evidence is clearly indicated [in 

claimant's case]" by "the chronology of [claimant's] history," 

"the amount of her records that are devoted towards her physical 

therapy modalities," and the absence of "suggestion of any 
- 6 -

secondary gain or of a primary psychiatric condition that would 

explain the course of her illness." 

Finally, the office notes of Dr. Paul A. Buongiorno support 

a finding that he, too, believed claimant's fibromyalgia was 

causally related to her 1987 injury. Dr. Buongiorno began 

treating claimant in conjunction with her admission to the pain 

clinic in 1987, when the symptoms from her industrial injury 

proved to be both chronic and spreading, and he treated her 

continuously, for that condition and others, until 1995. 

Although Dr. Buongiorno's first mention of fibromyalgia appears 

in his final office note of October 19, 1995, he noted on May 

23, 1995, that claimant's problems were merely "a recent flair 

of her [ongoing] symptoms." Thus, Dr. Buongiorno's notes also 

support a finding that the "severe myofascial pain syndrome" for 

which he had treated claimant since 1987 was fibromyalgia and 

that it was causally related to her industrial injury. 

 Employer contends the commission could not rely on 

Dr. Fogarty's opinion because he appears to have believed, 

incorrectly, that claimant was never able to return to work 

following the 1987 injury when the evidence shows she was both 

able to work for four years and able to engage in activities 

such as skiing without pain or injury in 1992. Employer also 

notes claimant required almost no medical attention for over two 

years after her retirement and contends that this fact breaks 

the causal connection between claimant's subsequently diagnosed 
- 7 -

fibromyalgia and her 1987 industrial injury and shows further 

flaws in claimant's expert medical evidence. We disagree. 

 Dr. Fogarty's opinion letter is unclear on the state of his 

knowledge regarding whether claimant returned to work after her 

1987 injury. Assuming Dr. Fogarty believed claimant could not 

work, his belief, though erroneous, did not render his opinion 

inherently incredible or require its automatic rejection. 

Whether claimant was able to work was not directly at issue in 

the proceedings before the commission, and Dr. Fogarty's 

misunderstanding regarding claimant's ability to work, if one 

existed, was simply one factor for the commission to evaluate in 

considering the evidence and determining what weight to give the 

various medical opinions. 

 As for whether claimant was able to ski in 1992, the record 

contains no direct evidence on this point. Rather, it contains 

two hearsay statements purportedly made by claimant to two of 

her health care providers. The 1992 records of a physical 

therapist indicate claimant reported skiing without pain or 

injury in 1992, whereas Dr. Fogarty's records indicate 

claimant's 2001 statement that she went on a skiing vacation in 

1992 but did not ski. The commission was free to disregard this 

evidence for any of several reasons. First, as noted above, it 

was hearsay evidence the reliability of which was indirectly 

challenged by claimant. Second, as the deputy commissioner 

found, the evidence established that claimant's condition "waxes 
- 8 -

and wanes and will permit her from time to time to 

increase/decrease her medical treatment regimen and activities." 

It was undisputed that, from time to time following claimant's 

retirement in 1992, she was able to engage in activities such as 

aerobics, bicycling and sailing and that some of these 

activities were prescribed as treatment for her condition. 

 Finally, we reject employer's argument that claimant failed 

to prove the necessary causal link between her industrial injury 

and fibromyalgia because she required less medical treatment for 

her condition during the first two-and-one-half years following 

her retirement in 1992. The evidence supports a finding that 

claimant's symptoms, although decreased, were ongoing during 

this period of time and that claimant was able to manage them 

herself because she now had time to implement a home exercise 

program, to avoid body postures like prolonged standing or 

sitting which tended to aggravate her condition, and to rest 

when necessary. 

Claimant's medical records dating back to 1987 indicate her 

reports that job duties such as "a lot of demonstration and 

standing," desk work grading papers, and lifting and carrying 

books aggravated her condition. She also reported that when she 

was on vacation from school, she experienced less pain because 

she could "rest, stretch, be physically active, and take care of 

herself." When she retired in 1992, she continued weekly 

physical therapy but began to exercise more on her own and was 
- 9 -

eventually able to discontinue her physical therapy due to her 

self-management program. 

Although claimant did not receive physical therapy 

specifically for her 1987 back injury again until 1995, 

Dr. Buongiorno, who treated claimant for her industrial injury 

from 1987 through 1995, referred her to physical therapy for an 

unrelated rib injury in 1992 and asked the therapist to "check 

[her] old injury," as well. She continued to take Pamelor and 

Motrin throughout this period of time. In early 1993, when 

Dr. Buongiorno detected "minor muscle knots" in claimant's 

cervical region, claimant reported she had been getting less 

exercise since breaking her rib. In April 1994, claimant 

reported she was taking sailing lessons but still required 

Pamelor and Motrin for her back pain. In late 1994, 

Dr. Buongiorno noted that claimant was "doing well overall" but 

that she continued those medications and received physical 

therapy as needed. Finally, claimant reported to Dr. Schulman 

that while she remained under the care of Dr. Buongiorno, he 

"would periodically inject . . . novocaine[] into . . . 

'multiple trigger sites' throughout her back and chest." She 

also reported using her TENS unit "for the past ten years." 

This evidence supported a finding that claimant's pain, although 

decreased, was ongoing following her retirement and was directly 

related to the more frequent flare-ups she began to experience 

in 1995. 
- 10 -

Thus, the opinions of Drs. Thomas and Fogarty, coupled with 

claimant's medical records dating back to her 1987 injury, 

constitute credible evidence that claimant's condition, 

fibromyalgia, was causally related to her industrial injury, 

despite the opinions of Drs. Schulman and Gisolfi that no causal 

connection existed.1

 1

 Employer also objects to the commission's consideration of 

the opinion of a massage therapist, Alta Sue Muris, in its 

analysis of the causation issue, arguing that the ability to 

express medical opinions lies within the exclusive province of 

licensed physicians. See, e.g., Woehr v. Bridgewater Home, 

Inc., No. 151-55-14 (Va. Workers' Comp. Comm'n Dec. 6, 1994) 

(noting that commission's recognized exception to hearsay rule 

which permits admission of medical opinions over hearsay 

objection does not extend to opinions by physical therapists 

"except to the extent such opinions may be ratified and 

incorporated into the medical reports of licensed physicians as 

their own opinions"). 

Assuming without deciding that the commission's repeated 

holdings that only doctors can express medical opinions is the 

correct state of the law, we presume, in the absence of evidence 

to the contrary, that the commission knew and followed its own 

repeated prior pronouncements of the law. See Yarborough v. 

Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977) 

(holding trial court is presumed to know and properly apply the 

law "[a]bsent clear evidence to the contrary in the record"). 

Here, the commission merely mentioned in its recitation of the 

facts Muris's statement that claimant "has no desire to be in a 

sick role." The commission, in its legal analysis, made no 

mention of Muris's opinion and said merely that the relatedness 

of the fibromyalgia to her industrial injury "is readily 

traceable through the medical records, and is further 

substantiated by the claimant's current authorized treating 

physicians." (Emphasis added). Thus, we presume no error 

occurred. 
- 11 -

B. 

"NECESSARY" MEDICAL TREATMENT UNDER CODE § 65.2-603 

 "[N]ecessary medical attention" under Code § 65.2-603 may 

include palliative treatment. H.J. Holz & Son, Inc. v. 

Dumas-Thayer, 37 Va. App. 645, 655, 561 S.E.2d 6, 11 (2002). 

"Whether 'such other medical attention' be deemed necessary is 

for the attending physician or . . . [c]ommission to determine, 

not the employer." Jenson Press v. Ale, 1 Va. App. 153, 159, 

336 S.E.2d 522, 525 (1985) (decided under former Code § 65.1-88, 

predecessor to Code § 65.2-603). It is a mixed question of law 

and fact. Goad, 15 Va. App. at 712-13, 427 S.E.2d at 217. 

 Employer contends both that the commission failed to make a 

finding regarding whether ongoing treatment was "reasonable and 

necessary medical attention" within the meaning of Code 

§ 65.2-603 and that the evidence does not support such a 

finding. Again, we disagree. 

 The deputy commissioner concluded explicitly that the 

challenged treatment was "reasonable and necessary." Although 

the commission did not specifically repeat the deputy's finding 

on this issue and did not make an express finding that the 

treatment was "necessary," it recognized that claimant bore the 

burden of proving "such other medical attention was necessary," 

and it expressly affirmed the deputy's "Opinion." Although the 

better practice would be for the commission to make express 
- 12 -

findings of fact and conclusions of law on disputed issues, we 

conclude the commission's holding was sufficient. 

 We hold further that the evidence was sufficient to support 

this ruling. Treating Physician Thomas, board certified in 

physical medicine and rehabilitation, opined that the symptoms 

of fibromyalgia, if untreated, can become "severely disabling 

and progressive." He noted that claimant is "extremely 

compliant in maintaining a home program of aerobic muscle 

conditioning and stretching and reducing as many environmental 

triggers as possible." Dr. Fogarty agreed that claimant "has 

been a disciplined and compliant patient who has dealt with her 

illness in an exemplary fashion." 

In addition to claimant's independent efforts, Dr. Thomas 

described the various treatments he has prescribed "to improve 

[claimant's] symptoms, with much success": 

I have prescribed Serzone and Flexeril to 

reduce her pain, diminish her fatigue, and 

relax her muscles when she is having severe 

spasms. Stretching, myofascial release and 

other physical therapies have been used. 

[Claimant] requires treatments such as 

trigger point injections, acupuncture, 

biofeedback, EEG-driven stimulation and 

relaxation therapy. These treatments used 

alone or in combination have been 

particularly successful in [claimant's] case 

but provide only temporary relief. They 

allow her to remain independent in her 

functional mobility and self care skills and 

control her pain to a moderate level most of 

the time. It is evident in my opinion that 

without these treatments [claimant] would be 

living an unbearably pain filled dependent 

life. 
- 13 -

Dr. Fogarty's opinion letter supported this conclusion. 

Although Dr. Fogarty did not focus on the treatments claimant 

had received in as specific a fashion as Dr. Thomas did, he 

expressly noted that "[his] role in [claimant's] treatment has 

been to assist in coordinating her physical therapy modalities 

and managing her pain as well as associated anxiety, depression 

and insomnia with medication, in an effort to optimize her 

functional capacity." His records established that he 

prescribed ongoing physical therapy, massage therapy, 

acupuncture and trigger point injections. Dr. Fogarty also 

noted that, in addition to claimant's own efforts, "[claimant] 

has been able to maintain a level of function and reduction of 

pain due to the diligent efforts of many professionals over an 

extended period of time." 

Thus, Dr. Thomas's opinion, which the commission found 

credible and which employer conceded on brief was "probative" on 

"the medical necessity issue," supported by Dr. Fogarty's 

opinion, established that claimant's ongoing treatments for her 

fibromyalgia, including trigger point injections and physical 

therapy, are "necessary" treatments within the meaning of Code 

§ 65.2-603. The fact that the record may contain a contrary 

opinion from Dr. Schulman is irrelevant because credible 

evidence supports the decision of the commission. 
- 14 -

 For these reasons, we hold that the commission implicitly 

found the challenged treatment was medically necessary and that 

credible evidence supported both that finding and the finding 

that claimant's fibromyalgia was causally related to her 

compensable industrial injury. Thus, we affirm. 

Affirmed.