COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, 

Willis, Elder, Bray, Annunziata, Overton, Bumgardner 

and Lemons 

Argued at Richmond, Virginia 

FAIRFAX COUNTY SCHOOL BOARD 

 OPINION BY 

v. Record No. 1700-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JANUARY 26, 1999 

ELLEN M. ROSE 

UPON A REHEARING EN BANC 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Michael N. Salveson (Hunton & Williams, on 

brief), for appellant. 

 Michael E. Canode for appellee. 

 Fairfax County School Board ("employer") appealed the 

Workers' Compensation Commission's decision granting the change 

in condition application of Ellen M. Rose ("claimant"). Employer 

contended the commission erred in: (1) finding that claimant 

effectively cured her prior unjustified refusal of necessary 

medical attention; (2) finding that claimant timely cured her 

prior refusal of medical care; and (3) relying upon an 

unpublished opinion of this Court. 

 In Fairfax County Sch. Bd. v. Rose, 27 Va. App. 587, 500 

S.E.2d 273 (1998), a divided panel of this Court reversed the 

commission's award of benefits and remanded the case. We granted 

rehearing en banc, and upon rehearing, we affirm the commission's 

decision. We hold that: (1) for a verbal cure of unjustified 

refusal of medical care to be effective, it must be made in good 
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faith, and (2) claimant's letter informing employer of her 

willingness to undergo surgery was made in good faith and cured 

her prior unjustified refusal of medical treatment. 

 I. 

 On March 20, 1991, claimant sustained an injury by accident 

to her back in the course of her employment. Employer accepted 

the resulting claim as compensable and paid temporary total 

disability benefits of $307.94 per week beginning March 28, 1991, 

pursuant to the commission's award entered September 12, 1991. 

 Claimant's treating physician, Dr. James W. Preuss, and 

several consulting physicians recommended as early as September 

1991 that claimant undergo back surgery to repair two herniated 

lumbar discs. Claimant refused the surgery. In July 1993, a 

functional capabilities evaluation revealed that claimant was 

unable to perform any type of work activity and had significant 

difficulty with ordinary tasks of daily living. In his answers 

to interrogatories filed November 2, 1993, Dr. Preuss stated that 

back surgery was the most reasonable and effective form of 

treatment for claimant's herniated discs and that if claimant 

were willing to undergo the surgery, Dr. Preuss would so 

recommend. He further stated that, with surgery, claimant had a 

good probability of returning to her regular work. 

 By the deputy commissioner's opinion of June 27, 1994, 

effective November 7, 1993, the claimant's disability benefits 

were suspended on the ground that claimant unjustifiably refused 
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recommended back surgery. The deputy commissioner found that 

surgery was reasonable and necessary medical care for claimant's 

herniated discs. The commission and this Court dismissed 

claimant's procedurally defective appeals of that decision, and 

the deputy commissioner's decision became final. 

 In July 1994, claimant attempted suicide and was 

hospitalized and treated for depression. After her release, she 

was placed on medication that affected her memory and restricted 

her ability to function. Claimant also suffered from 

agoraphobia, which limited her ability to go out in public. She 

was treated for these conditions by a psychiatrist and a licensed 

clinical social worker from 1994 through 1996. 

 On November 6, 1995, claimant filed two applications for 

hearing seeking reinstatement of compensation. One was denied 

and is not before this Court. The second application alleged a 

change in condition and sought reinstatement of benefits as of 

November 6, 1995 and continuing, on the ground that she was 

willing to submit to surgery by Dr. Preuss, the physician 

treating her back injury. In addition, claimant's counsel 

notified counsel for employer by letter that "Ms. Rose is now 

willing to undergo the lumbar surgery proposed by Dr. Preuss. 

Please contact me regarding the scheduling of an appointment with 

Dr. Preuss." 

 On February 29, 1996, claimant kept an appointment with Dr. 

Preuss and declared her willingness to have surgery. In 
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supplemental interrogatories filed on August 1, 1996, Dr. Preuss 

stated that he discussed surgery with claimant in February 1996 

but that he did not recommend surgery at that time because of her 

stable condition. In his deposition, Dr. Preuss explained that 

claimant's condition was "stable" because she had not exhibited 

any worsening of her neurological condition since 1992. He 

testified that, in any case where the patient's neurological 

examination is stable and the patient is willing to tolerate the 

level of pain and incapacity, he would not recommend surgery and 

would regard it as an elective procedure. Dr. Preuss stated that 

claimant's inability to work played no part in his recommendation 

regarding surgery. Dr. Preuss acknowledged that if claimant were 

willing to undergo surgery her symptons would improve. 

 After a hearing on July 9, 1996, the deputy commissioner 

found that claimant failed to cure her unjustified refusal before 

November 6, 1995. Consequently the issue became whether her 

November 6 application and letter to employer's counsel stating 

that she was willing to undergo surgery constituted a timely and 

effective cure. Finding that "claimant was only required to 

cease her unwillingness and refusal to undergo surgery," the 

deputy commissioner concluded that claimant's counsel's letter of 

November 6, 1995 effectively cured her earlier unjustified 

refusal of medical treatment within the statutory time limit. 

 On review, the full commission determined that "the main 

issue [was] . . . whether the applications and letter of November 
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6, 1995, effectively cured the claimant's refusal of the 

recommended surgery." While noting its own decision in Lester v. 

Northern Mineral Corp., 64 O.I.C. 203 (1985), the commission 

relied on the unpublished opinion of this Court in Bane v. 

Rosslyn Concrete Constr. Co., No. 2598-92-4, 1994 WL 43332 (Va. 

Ct. App. Feb. 15, 1994). The commission concluded the following: 

 In this case, the claimant has cured her 

prior refusal of medical treatment. She was 

seen by Dr. Preuss on February 29, 1996, and 

on July 23, 1996, she indicated her 

willingness to go forward with surgery. The 

claimant has done all that she can do until 

surgery is scheduled. . . . Based on a 

review of the evidence before us, we find 

that she has cured her refusal of surgery, if 

it is still recommended, and that benefits 

were properly reinstated. 

 II. 

 On appeal, employer contended claimant failed to timely cure 

her prior unjustified refusal of medical care. A divided panel 

of this Court agreed and reversed the commission's decision. 

Upon rehearing en banc, we hold that claimant timely cured her 

prior unjustified refusal of medical care. 

 Code § 65.2-708(A) provides: "[O]n the ground of a change 

in condition, the Commission may review any award and on such 

review may make an award ending, diminishing or increasing the 

compensation previously awarded." However, "[n]o such review 

shall be made after twenty-four months from the last day for 

which compensation was paid." Code § 65.2-708(A). In the 

instant case, claimant was last paid compensation for the period 
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ending November 7, 1993. Code § 65.2-708 terminated her right to 

continued disability compensation unless she cured her prior 

unjustified refusal of medical treatment by November 7, 1995. 

 Claimant failed to cure her unjustified refusal of medical 

care prior to November 6, 1995. The sole issue before us is 

whether claimant's November 6, 1995 letter informing employer of 

her willingness to undergo surgery cured her prior unjustified 

refusal of medical treatment. This issue presents a mixed 

question of law and fact and may be reviewed de novo by this 

Court. See Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60, 

68, 455 S.E.2d 267, 271 (1995). 

 The effectiveness of a cure by words alone, a "verbal 

cure,"1 in the context of an unjustified refusal of medical 

treatment, is an issue of first impression. However, in the 

analogous area of the cure of a refusal of selective employment 

or vocational rehabilitation, we have held that a verbal cure is 

effective if it is made in good faith. See Christiansen v. Metro 

Bldg. Supply, Inc., 18 Va. App. 721, 724, 447 S.E.2d 519, 521 

(1994), aff'd on reh'g, 19 Va. App. 513, 453 S.E.2d 302 (1995) 

(refusal of selective employment may be cured by claimant's offer 

to accept the previously refused employment if made "in good 

faith"); James v. Capitol Steel Constr. Co., 8 Va. App. 512, 518, 

 

 1A "verbal cure" is a statement indicating willingness to 

cure which is unaccompanied by curative action. A verbal cure 

may be spoken, see James v. Capitol Steel Constr. Co., 8 Va. App. 

512, 518, 382 S.E.2d 487, 490 (1989), or written, as in the 

instant case. 
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382 S.E.2d 487, 490 (1989) ("[a]ssuming that the refusal to 

cooperate with vocational rehabilitation could be cured by a 

verbal statement of willingness to cooperate . . . it must be 

made in good faith"); Thompson v. Hampton Institute, 3 Va. App. 

668, 671, 353 S.E.2d 316, 317 (1987) (claimant may cure refusal 

of selective employment when he "in good faith advises his 

employer that he is willing to accept such work"). 

 We have "historically treated and discussed [these similar 

areas] in conjunction with one another," Hercules, Inc. v. 

Carter, 13 Va. App. 219, 223, 409 S.E.2d 637, 639 (1991), aff'd 

on reh'g en banc, 14 Va. App. 886, 419 S.E.2d 438 (1992), and we 

now hold that for a verbal cure of an unjustified refusal of 

medical care to be effective, it must be made in good faith. A 

claimant must demonstrate his or her good faith through an 

affirmative action or a showing of circumstances mitigating the 

failure to act.2

 

 2Although we are not bound by the decisions of the 

commission, our holding is consistent with the commission's 

cases, which, although they do not focus on a finding of good 

faith, do require affirmative action of the claimant in the 

absence of mitigating factors. See Smith v. Kershaw Automotive, 

No. 153-36-02 (Workers' Comp. Comm'n Aug. 24, 1994) (claimant's 

letter to employer's counsel stating his willingness to accept 

selective employment, absent mitigating circumstances, failed to 

cure prior refusal); McLaughlin v. Manville Sales Corp., 73 

O.W.C. 185, 186 (1994) ("We have consistently held that something 

more than a mere statement of willingness to cooperate is 

required. The claimant must take some affirmative action . . . 

demonstrating his willingness to cooperate [with vocational 

rehabilitation]."); Hughes v. Fred Dehner Sawmill, Inc., No. 

147-60-14 (Workers' Comp. Comm'n July 12, 1993) (claimant's 

refusal to submit to an independent medical examination while 

appeal was pending was cured by his written agreement to submit 

to the exam if the outcome of the appeal required it); Lester v. 
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 Under the circumstances presented, we hold that claimant's 

letter of November 6, 1995, combined with the mitigating factors 

hereinafter described, effected a cure of her prior unjustified 

refusal of medical treatment. Clearly claimant's mental 

conditions of depression and agorophobia constituted mitigating 

circumstances which explained any delay in contacting Dr. Preuss. 

 While it would have been preferable for claimant to have seen 

Dr. Preuss on November 7, 1995 rather than February 29, 1996, her 

actions constituted the requisite good faith necessary to 

accomplish the verbal cure. At her later appointments with Dr. 

Preuss on February 29, 1996 and July 23, 1996, claimant 

reaffirmed her willingness to have the surgery, but, in light of 

her stable condition, Dr. Preuss no longer recommended it. 

Claimant's psychological condition and her statements to her 

treating physician, that she was willing to submit to surgery if 

it was still recommended, were affirmative actions which 

reinforced that her November 6, 1995 statement was made in good 

faith. We hold that claimant timely and effectively cured her 

prior refusal of medical care and, accordingly, affirm the 

commission.3

Northern Mineral Corp., 64 O.I.C. 203, 205 (1985) ("The 

Commission has regularly held that, in the absence of other 

mitigating factors, suspension of benefits for refusal of medical 

or physical rehabilitation training services will continue until 

a claimant actually meets with a physician or counselor and cures 

a refusal."). 

 3Employer also contends the commission erred in relying on an 

unreported decision, Bane v. Rosslyn Concrete Constr. Co., No. 

2598-92-4, 1994 WL 43332 (Va. Ct. App. Feb. 15, 1994). See Code 
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 Affirmed.

 

§ 17.1-413(A), recodifying § 17-116.010(A). Although an 

unpublished opinion of the Court has no precedential value, see

Grajales v. Commonwealth, 4 Va. App. 1, 2 n.1, 353 S.E.2d 789, 

790 n.1 (1987), a court or the commission does not err by 

considering the rationale and adopting it to the extent it is 

persuasive. Accordingly, the commission did not err in 

considering our decision in Bane. 
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Coleman, J., with whom Bray and Lemons, JJ., join, dissenting. 

 Code § 65.2-603, which requires an employer to provide 

necessary medical attention to an employee injured in an 

industrial accident, also provides that when the employee 

unjustifiably refuses to accept such medical services the 

employee shall be barred "from further compensation until such 

refusal ceases and no compensation shall at any time be paid for 

the period of suspension." Code § 65.2-603(B). The medical 

attention that is necessary to restore an employee's good health 

is part of the compensation to which an injured employee is 

entitled but it also serves the desirable purpose for both the 

employee and employer of enabling the employee to return to 

useful employment when reasonably possible. Richmond Mem. Hosp. 

v. Allen, 3 Va. App. 314, 318, 349 S.E.2d 419, 422 (1986). 

 An injured employee, who is entitled to compensation 

benefits from his employer, including medical benefits, may not 

elect to remain disabled at the expense of his or her employer 

when reasonable medical treatment would cure or correct the 

disability and enable the person to become a productive employee. 

See Davis v. Brown & Williamson Tobacco Co., 3 Va. App. 123, 348 

S.E.2d 420 (1986) (holding that the "unjustified refusal" 

provision is "to penalize" employees who unjustifiably refuse 

reasonable and necessary medical attention). Here, the 

commission held on November 7, 1993, that Ellen Rose 

unjustifiably refused medical treatment by refusing to have disc 
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surgery recommended by her attending physician which, according 

to his opinion, would correct her work-related disability. 

Accordingly, the commission suspended Ellen Rose's benefits and 

that decision has been final and binding and remained in effect 

since November 7, 1993. 

 On November 6, 1995, the day before Ellen Rose's claim for 

further benefits would have been barred by Code § 65.2-708, she 

filed a change of condition application stating that she was now 

willing to have the corrective disc surgery. In support of her 

application she proved that her counsel had sent a letter to 

employer's counsel stating that Ms. Rose was willing to undergo 

the lumbar surgery and requesting that they confer to arrange an 

appointment with her treating physician, Dr. Pruess. Rose 

contends, and the majority has held, that her stated willingness 

to have the surgery cured her unjustified refusal and that 

compensation benefits, which had been suspended for two years, 

should be reinstated. The commission found that Ellen Rose's 

stated willingness to undergo the surgery was a "verbal cure" of 

her unjustified refusal and that the two appointments that she 

arranged with Dr. Pruess were affirmative acts that corroborated 

her good faith. The majority of this Court holds that credible 

evidence supports that finding. 

 I disagree with that holding. The affirmative acts upon 

which both the commission and this Court rely to prove that Ellen 

Rose's stated willingness to have surgery was bona fide were two 
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appointments she had with Dr. Pruess. However, what is 

significant about the two appointments with Dr. Pruess is, as his 

deposition establishes, that Ellen Rose did not and does not 

intend to have the surgery which would correct her work-related 

disability but rather intends to live with the pain. In my 

opinion, the majority errs by merely considering the fact that 

Rose made appointments with Dr. Pruess as affirmative acts 

proving her good faith, without considering what transpired at 

the appointments. Because Dr. Pruess's deposition proves 

unequivocally that Rose did not schedule surgery and does not 

intend to have surgery, but rather intends to live with the pain, 

no credible evidence proves that Rose had a bona fide willingness 

to have surgery. Because I would find that no credible evidence 

supports the commission's finding that Rose cured her unjustified 

refusal of medical treatment, I respectfully dissent. 

 As the majority notes, whether Rose cured her unjustified 

refusal is a mixed question of law and fact. See Roanoke Belt, 

Inc. v. Mroczkowski, 20 Va. App. 60, 68, 455 S.E.2d 267, 271 

(1995). The factual component of the question requires a 

determination by the commission of Rose's state of mind and 

whether her stated willingness to have surgery was in good faith. 

 But, we review de novo whether credible evidence exists in the 

record to support the commission's finding. 

 Clearly, the standard of review by this Court is high. 

Unless the evidence in the record is insufficient, as a matter of 
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law, to sustain her burden of proof that she cured her 

unjustified refusal of medical treatment by a good faith 

willingness to have the surgery, then the commission's finding is 

binding and conclusive. Code § 65.2-706; Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 As previously noted, an injured employee cannot refuse to 

accept reasonable medical services that will enable the employee 

to return to productive employment. Code § 65.2-603. In order 

to cure an unjustified refusal of medical treatment, an employee 

must accept the corrective medical treatment and may do so, as 

the majority holds, by a "verbal cure" provided the statement 

demonstrates a good faith willingness by the employee to accept 

the surgery. The majority holds, and I concur with that holding, 

that good faith can be shown "through an affirmative action or a 

showing of circumstances mitigating the failure to act." For 

purposes of this opinion, I accept the commission's finding and 

the majority's upholding that Rose's depression and agoraphobia 

constituted mitigating circumstances explaining her delay in 

contacting Dr. Pruess for further medical treatment. However, 

the record is clear, in my opinion, that in order to cure her 

unjustified refusal of medical treatment she must be willing to 

have disc surgery, and Rose did not and does not intend to have 

the corrective surgery. Dr. Preuss's deposition establishes that 

although the surgery would improve her symptoms, Rose does not 

plan to have the surgery because her condition is "stable" and 
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she can tolerate the pain. The fact that surgery may not be a 

medical necessity from the doctor's point of view does not 

relieve Rose of the responsibility of accepting reasonable 

medical treatment that will alleviate these problems that cause 

the work-related disability. Although Rose may have other 

unrelated emotional or psychological disabilities that prevent 

her from returning to her previous employment, she cannot elect 

to have her work-related disability go untreated in order to 

receive compensation benefits from her employer. 

 While contacting Dr. Pruess and arranging the belated 

appointments with him in February and July could, under some 

circumstances, be "affirmative actions" that show good faith, 

where the result of those appointments is that surgery was not 

scheduled because Rose was willing to "live with the pain" the 

evidence fails to prove that she was willing to have surgery. 

The question for Rose is not whether surgery is a medical 

necessity, but whether surgery is a reasonable treatment that 

would correct her disability. It is not sufficient, as the 

majority apparently holds, that she is now willing to accept 

surgery as a course of treatment merely because she scheduled the 

appointments; the result of those "affirmative acts" proved that 

Rose continued to elect to live with the pain rather than accept 

surgery. 

 I would reverse the commission's finding and hold that no 

credible evidence proves that Rose's "verbal cure" was in good 
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faith; to the contrary, the evidence proves she had no intention 

to accept the medical treatment.