COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decke r, Judges Petty and Huff Argued at Richmond, Virginia

TOM DAWSON MEMORANDUM OPINION * BY v. Record No. 0259-19-2 CHIEF JUDGE M ARLA GRAFF DECKER OCTOBER 22, 2019 COUNTY OF HENRICO AND VIRGINIA ASSOCIAT ION OF COUNTIES GROUP SELF-INS URANCE RISK POOL

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Michael J. Beste (Andrew J. Rei nhardt; Reinhard t Harper Davis , PLC, on brief), for appellant. Faraaz A. Jindani (Brian A. Richardson; Ford Richardson, P.C. , on brief), for appellees.

Tom Dawson (the claimant) appeal s the Workers’ Compensation Commission’s decision denying his request for compensation covering home health care for twenty-four hours a day, seven days a week. For the reasons that follow, we affirm the Commission’s decision.
I. BACKGROUND 1 On May 22, 2015, the claimant was injured during a traffic acc ident that occurred in the course of his employment. The C ommission awarded the claimant, in pertinent part, benefits for “reasonable, necessary, causall y-related, and authorized medica l treatment” for his resulting injuries.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 In appeals from the Commission, w e view the “evidence in the l ight most favorable to the prevailing part[y] before t he Commission,” in this case, th e employer. See Carrington v. Aquatic Co., __ Va. __, __ (July 18, 2019) (alteration in origi nal) (quoting Jeffreys v. Uninsured Emp’rs Fund, 297 Va. 82, 87 (2019)).UNPUBLISHED- 2 - On November 8, 2017, the claimant f iled for benefits covering h ome health care for twenty-four hours a day, seven da ys a week. He sought for such care to be provided by his fiancée, Indira Merritt, “or at he r direction.” The employer d efended against the claim on the ground that such care was neither reasonable and necessary nor causally related to the work accident. The deputy commissioner held a he aring to determine whether the claimant qualified for continuous home health care bene fits. She specifically noted t hat the identity of the particular provider of the care was “not amatter before the Commission” a t that time. Instead, the sole issue was whether the employer was responsible for home health care twenty-four hours a day, seven days a week. Dr. James Sellman, a psychiatrist and one of the claimant’s aut horized treating physicians, described the claim ant’s behavioral and cognitive i mpairments resulting from his brain damage caused by his injur y. The doctor listed the claim ant’s ongoing complaints of depression, fatigue, headaches, mem ory impairment, insomnia, ag gression, problems regulating emotions, and cognitive difficulties. He explained that the “r eal problem” was the claimant’s failure to “understand what he needs to do to take care of hims elf.” Sellman added that the claimant could not monitor his own medication intake, drive, go to a store, buy things, manage money, or pay bills. Dr. Sellman recommended that the claimant receive home health c are twenty-four hours a day, every day, for his “medi cal well-being and safety.” How ever, he clarified that the appellant did not need help for a ll of that time but simply nee ded help available. In contrast, one month before his deposition, Sellm an indicated that the claiman t needed supervision eighteen hours a day, during his waking hours. During the deposition, h e acknowledged that the claimant “probably” did not need care “every hour.”- 3 - The doctor opined that a home hea lth care attendant needed to m onitor and supervise the claimant, who might be “explosive, ” “aggressive,” or “paranoi[d ].” He believed that the care the claimant required was the type “normally provided by medical pe rsonnel” but allowed that it could be provided by a laypers on with specialized knowledge. T he doctor also opined that the claimant’s needs could be met by atrusted individual who could periodically check in with the claimant. Merritt, the claimant’s fiancée , testified at the hearing. She described the claimant’s condition and the type of care th at she believed that he needed

. 2 Merritt opined that he needed care twenty-four hours a day, seve n days a week. She stated th at the claimant could not drive, handle money, manage his own med ications, or prepare meals. Me rritt testified that he bathed and brushed his teeth only at her direction. She explained tha t every day she went to work, the claimant barricaded himself i n a room. According to Merritt, t he claimant often needed help standing or getting out of bed, but she acknowledged that he wa s physically capable overall. The deputy commissioner denied t he claimant’s request for compe nsation for continuous home health care. The claimant requested review of the decisio n. The Commission affirmed in a split decision. Applying Warren T rucking Co. v. Chandler, 221 Va. 1108 (1981), the C ommission held that the req uested home care did not qualify as medical attention under the applicable statute. In doing so, the Commission concluded that Sellman’s recommendation th at the claimant receive home he alth care twenty-four hours a day, seven days a week was equivocal.

2 A social worker, Merritt studie d behavioral science in college . In addition, Merritt studied graduate level counseli ng with “mental health specializ ation,” although she did not obtain a graduate degree.- 4 - II. ANALYSIS “Whether disputed medical treatment is compensable as ‘other n ecessary medical attention’ within the defin ition of Code § 65.2-603 presents a mixed question of law and fact, which this Court reviews de novo .” Cumberland Hosp. v. R oss, __ Va. App. __, __ (Oct. 22, 2019) (quoting Haftsavar v. All Am. Carpet & Rugs, Inc., 59 Va. App. 593, 599 (2012)). In conducting our review, this Cour t defers to the Commission in i ts role as fact finder. Vital Link, Inc. v. Hope, 69 Va. App. 43, 53 (2018). A factual finding by the Commission is “conclusive and binding” as long as evidence i n the record supports it. Se e Jeffreys v. Uninsured Emp’rs Fund, 297 Va. 82, 87 (2019) (quoting Code § 65.2-706(A)). This principle applies “even [if] there is evidence in the recor d to support contrary findings.” Id. (quoting Caskey v. Dan River Mills, Inc., 225 Va. 405, 411 (1983)). In short, “[i]f there i s evidence or reasonable inference that can be drawn from the evid ence to support the Commission’s findings, they will not be disturbed by this Court on appeal.” Id. (quoting Caskey, 225 V a. at 411). The Court does not “retry the facts,” reweigh the evidence, or make its own determ ination of the “credibility of the witnesses.” Id. (quoting Cask ey, 225 Va. at 411). In contrast , “we ‘review questions of law de

novo .’” Nelson Cty. Sch. v. Woodson, 45 Va. App. 674, 677 (2005) ( quoting Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 127 (1999) ( en banc )). As the appellant in this case, the claimant bears the “burden of show ing that reversible error was committed” by the Commission in denying his claim for benef its. See Burke v. Catawba Hosp., 59 Va. App. 828, 838 (2012). Code § 65.2-603 provides, in pertinen t part, that “[a]s long as necessary after an accident, the employer shall furnish or cau se to be furnished, free of ch arge to the injured employee, a physician chosen by the injured emp loyee from a panel of at lea st three physicians selected by the employer and such other necessary medical attention .” (Emphasis added). “Ordinarily, nursing services, whether rendere d in a hospital or at home, ar e included among the medical- 5 - benefits that an employer and i nsurer must furnish, provided th e services are necessary and authorized.” Warren Trucking, 221 Va. at 1115. The claimant “ bears the burden of proving by a preponderance of the evidence th at a disputed treatment [is] me dically necessary.” Vital Link, 69 Va. App. at 54 (quoting Adva nce Auto v. Craft, 63 Va. App. 5 02, 523 (2014)). The Commission was unpersuaded by t he evidence that Dr. Sellma n recommended that the claimant receive care twent y-four hours a day, seven days a week. Although the doctor recommended that the claimant r eceive home health care twenty-f our hours a day, every day, he did not consistently make this recommendation. One month befor e his deposition, Sellman indicated that the claimant n eeded supervision eighteen hours aday, during his waking hours. Further, during the deposition, he acknowledged that the claima nt “probably” did not need care “every hour.” This record supports the Commission’s characteri zation of Sellman’s recommendation as equivocal. The claimant argues that the C ommission disregarded Dr. Sellma n’s unrebutted recommendation that the claiman t needed continuous home health care for his safety and well-being. We recognize that “the opinion of the treating phy sician is entitled to great weight.” Berglund Chevrolet, Inc. v. Landrum, 43 Va. App. 742, 753 n.4 ( 2004) (quoting H.J. Holz & Son, Inc. v. Dumas-Thayer, 37 Va. App. 645, 655 (2002)). Nonet heless, the Commission, acting within its purview as fact finde r, was entitled to conclude in the context of all the evidence that Sellman’s opinion did not establis h that the claimant needed ho me health care twenty-four hours a day, seven days a week. See United Airlines, Inc. v. Hayes, 58 Va. App. 220, 238 (2011) (noting that the Commission, in i ts role as finder of fact, “ma y accept the parts of a witness’ testimony it finds believable and reject other parts as implaus ible” (quoting Moyer v. Commonwealth, 33 Va. App. 8, 28 (2000) ( en banc ))).- 6 - The Commission reviewed the claim ant’s medical records, heard the testimony, and considered Dr. Sellman’s deposi tion. It conclude d that the cla imant did not sufficiently prove that continuous home health care was necessary medical attentio n because even his treating physician’s recommendation for such, on which the claimant reli ed, did not establish that he needed a care provider twenty -four hours a day, seven days a we ek. The record supports the Commission’s conclusion. The claimant also contends tha t the Commission erred in followi ng the analysis provided in Warren Trucking because the issue in this case was whether h ome health care was compensable, not whether his fi ancée could be paid to provide t hat home health care. The Supreme Court’s four-part testin Warren Trucking applies when a claimant seeks compensation for care rendered by his or her spouse. See Cumberland Hosp., __ Va. App. at __ (holding that Warren Trucking always applies wh en a claimant seeks compensati on for home care rendered by his or her spouse). The factors listed in Warren Trucking “hel p distinguish between spousal care that is inherent in a marital r elationship and spousal care tha t constitutes necessary medical attention.” Id. at __. Here, t he Commission found that the cl aimant did not sufficiently prove that he needed a care provider twenty-four hours a day, seven d ays a week in the first place. Based on this finding, application of the four-part test in War ren Trucking was unnecessary. 3 Regardless, the Commission’s unw arranted application of Warren Trucking to this case “could not have affected the . . . resul t.” See Va. Ret. Sys. v. Ciri llo, 54 Va. App. 193, 202 (2009).

3 In light of this conclusion, we do not reach the issue of whet her certain pieces of the Warren Trucking analysis may be r elevant to determining whether home care qualifies as “other necessary medical attention” under Code § 65.2-603. See genera lly Orthopaedic & Spine Ctr. v. Muller Martini Mfg. Corp., 61 Va. App. 482, 490 n.6 (2013) (“[A ]n appellate court decides cases ‘on the best and narrowest ground a vailable.’ (quoting Luginbyh l v. Commonwealth, 48 Va. App. 58, 64 (2006) ( en banc ))); Warren Trucking, 221 Va. a t 1116 (requiring, in part, that “the medical attention is perfo rmed under the direction and con trol of a physician”).- 7 - Therefore, we affirm the Commission’s decision. See K & G Abat ement Co. v. Keil, 38 Va. App. 744, 754-55 (2002) (applying ha rmless error review to a Commission decision).
III. CONCLUSION The record supports the Commission’ s conclusion that the claima nt’s treating physician’s recommendation, on which he relie d, did not establish that home health care twenty-four hours a day, seven days a week, was necessary medical attention. Conse quently, we affirm the decision of the Commission. Affirmed.