COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, AtLee and Malveaux

Argued at Richmond, Virginia

ROCKINGHAM COUNTY SCHOOL BOARD, ET AL.

MEMORANDUM OPINION * BY

v. Record No. 1 1 9 3

- 2 3

- 2 JUDGE RANDOLPH A. BEALES

AUGUST 27, 2024

SHARON ROHRBAUGH

FROM THE VIRGINIA WORKERS ’ COMPENSATION COMMISSION

Amanda Tapscott Bel l iveau ( McCandlish Holton, P.C.

, on brief s )

, for appellant s

.

Michael L. Ritchie ( Ritchie Law Firm, P.L.C. , on brief), for

appell ee

.

Rockingham County School Board and Graphic Arts Mutual Ins. Co. (collectively

, the

“ Rockingham School Board ” ) appeal from a decision of the Workers ’ Compensation Commission

.

The Commission found that inpatient residential care at an assisted living facility was reasonable

and necessary medical care for the claimant, Sharon Rohrbaugh

– and that such care was causally

related to her work accident. On appeal, the Rockingham School Board argues that the Commission

erred in finding “ that the requested inpatient residential care is ‘ medical treatment

, ’ ” and argues that

such care was not necessary or causally related to Rohrbaugh’s work place accident.

I. B ACKGROUND

Sharon Rohrbaugh was employe d as a teacher’s aide with the Rockingham County

School Board

. In M arch 1987

, she suffered a compensable injury by accident when she tripped

over a mop handle and fell down a flight of stairs

, resulting in a traumatic brain injury

.

* This opinion is not designated for publication. See Code § 17.1

- 413(A). UNPUBLISHED- 2

-

Rohrbaugh suffered “Post Tra umatic supraorbital neur [a] lgia, ” and the Commission entered an

agreed order awarding Rohrbaugh medical benefits and temporary total disability benefits

.

Rohrbaugh ’ s medical condition has gradually deteriorated over the ensuing decades. In 2001,

the Commission stated that Rohrbaugh’s medical records establish that she suffered from a brain

injury, and it determined that her “ hydrocephalus

. . . was aggravated by the fall” and that

Rohrbaugh’s “psychological overlay and seizure disorder ar e directly related to the fall at work

in 1987.” The Commission also noted Rohrbaugh’s testimony that she was becoming

progressively weaker and that she needed assistance to walk . The Commission further found

that Rohrbaugh was unable to return to gainfu l employment

, and it awarded her permanent total

disability benefits. Later, in 20 05 , the Commission entered a stipulated order for the

Rockingham County School Board to provide Rohrbaugh a Hoveround brand wheelchair. More

recently, in 2018, the Commissi on noted Rohrbaugh’s decreased mobility, and it entered an order

instructing the School Board to provide Rohrbaugh with Xarelto medication to prevent blood

clots.

Rohrbaugh lived in her home with her husband until 2020

, when her husband moved out

of the home. That summer

, a home health aide began help ing care for Rohrbaug h

, but she still

experienced several falls and had multiple visit s to the emergency department

. On June 29,

2020, Rohrbaugh visited the hospital e mergency room at RNH Medical Center after she lost her

balance and fell in the bathroom, bruising her right ribs against the bathtub. The medical records

from that visit also reflect that Rohrbaugh lived “at home by herself and has frequent falls.”

Rohrbaugh again vi sited the emergency department on July 9, 2020

, with rib pain and bruising

on the back of her right arm. In the c linical n otes section of her medical records, it was noted

that Rohrbaugh was experiencing excruciating pain and vomiting. The treating nurse stated that- 3

-

Rohrbaugh “has a history of falls and is not safe at home. [She] needs 24/7 care and nursing

home placement.”

On July 27, 2020

, Rohrbaugh returned to the emergency department after experiencing

suicidal ideation, and she noted that she was “tired and lonely and unable to care for herself

anymore. ” The emergency department physician noted in her records that Rohrbaugh should be

admitted to the hospital for observation until she could be placed in a skilled nursing facility

. On

August 15, 20 20, Rohrbaugh presented to the emergency department with seizures. On August

21, 2020, Rohrbaugh again visited the emergency department with multiple bruises from recent

falls.

In September 2020, Rohrbaugh began residing with her daughter, Amy Crews

. When

this living arrangement became unsustainable in December 2020 , Rohrbaugh then began residing

with her friend, Sandra Rohr

, and then with Rohr’s si s ter, Connie Clem

, but neither of them was

able to host Rohrbaugh long

- term. During this time Rohrbaugh continued to experience falls.

At Rohr’s residence, Rohrbaugh suffered falls down steps and while in the shower. While

staying with C lem , Rohrbaugh fell and struck her head

, resulting in a laceration that required

sutures

. At the end of January 2021, Ro hrbaugh moved into Willow E states, a licensed assisted

living facility.

On September 13, 2021, Rohrbaugh visited her primary care physician, Christian Iudica,

M.D. Dr. Iudica assessed Rohrbaugh, and in his record of that visit he noted, “She is now in

Wi llow Estates and is mostly taken care of [by] the doctor there,” and also noted that Rohrbaugh

“cannot live alone or to care for herself due to her chronic medical issues.” That same day,

Dr. Iudica completed a questionnaire provided to him by counsel for Rohrbaugh . In his answers,

Dr. Iudica agreed that as a result of Rohrbaugh’s workplace injury “she is unable to safely live- 4

-

alone,” “she requires more care and supervision than a home health service can provide,” and

“she requires the care and supervisio n provided by an assisted living facility.”

In February 2022, occupational therapist Amy Homan DePoy evaluated Rohrbaugh and

presented her findings in a report dated March 16, 2022. In her report, DePoy concluded, “ The

opinion of this clinician, based on all assessments indicated in this report, is that Ms. Rohrbaugh

is best served by living in an assisted living facility due to the nature of her physical and

cognitive abilities .”

On April 5, 2022, counsel for both parties deposed Dr

. Iudica. During the deposition,

Dr. Iudica agreed that being left alone for long stretches of the day would be inadequate care for

Rohrbaugh. Dr. Iudica also noted that Rohrbaugh needed someone to supervise her both during

the day and at night and to as sist her if she fell. Finally, Dr. Iudica concurred with occupational

therapist DePoy’s report, and he stated that in his professional medical opinion, DePoy’s

recommendations should be followed.

On May 4, 2022, Marshall Crespin, a certified physician’s a ssistant, completed a

questionnaire provided to him by counsel for Rockingham County

. Based on the medical

records then available to him, Crespin indicated that Rohrbaugh did “not require in patient

medical care at this time.” However, Crespin’s opinion changed after he physically examined

Rohrbaugh two days later on May 6, 2022. Crespin then authored a letter opin ing that

Rohrbaugh’s “ physical and cognitive deficits do seem more significant than what I extrapolated

from reviewing her previous records available in our electronic medical record system and the

functional assessment with Ms. DePo[y].” Crespin then completed a questionnaire agreeing that

Rohrbaugh suffers from instability and falls due to her workplace accident. He also indicated

that Rohrbaugh requires twenty

- four hour monitoring to reduce her risk of falls and to help her

get up after any falls.- 5

-

Nevin Yoder, a family nurse practitioner, assessed Rohrbaugh when she was first

admitted to Willow Estates. On August 28, 2022, Yode r

, authored a letter stating that she

reviewed Rohrbaugh’s medical records

, “including notes from neurology, her PCP and an

occupational therapist .” In her letter, Yoder further stated, “ After reviewing these documents

and talking with Georgie Ann Thompson, the nurse who cares for her [Rohrbaugh] at the current

assisted living facility, I do feel like a facility where she can be monitored 24 hours a day by

caregivers would be the best option for her. ” The letter also provides that Rohrbaugh continu es

to experience falls and seizures and that “ there are times that staff need to pick her up out of her

wheelchair while she is seizing and place her in the bed so she is safe .” Yoder recounted that

n urse Thompson “does not feel the resident [Ro h rbaugh] i s safe to live independently based on

the amount of care the staff provide for her.” Yoder concluded her letter by stating, “ Again I do

feel a facility such as an assisted living, would be the best option for her.”

I n September 2021, Rohrbaugh filed a req uest for a hearing before the Commission

,

alleging a change in condition and requesting that the Rockingham County School Board pay for

“ inpatient residential care ” at Willow Estates that she argued was a direct result of her

compensable accident. Following the hearing, the d eputy c ommissioner granted Rohrbaugh ’ s

request for residential treatment and found that such care was a medical consequence of her

compensable injury. In its request for review, the Rockingham School Board argued that

residential care at an assisted living facility, as opposed to a nursing home, is “ not necessary

medical care ” under Code § 65.2

- 603.

On June 12, 2023, the full Commission issued a unanimous decision affirm ing the d eputy

c ommissioner. T he Commission stated that it had previously held in another case that placement

in an assisted living facility was “ reasonable and necessary medical care. ” See McKay v. Arby ’ s

,

JCN 1302640 (Oct. 7, 2014). The Commission also stated, “ A claimant does not need to prove a- 6

-

change in condition to be entitled to medical care under the Act, ” but that such a change would

be necessary if Rohrbaugh had sought resumption of wage loss ben efits. The Commission

further found that the decision as to where and how medical treatment should be rendered rests

with the treating physicians

. “ Here, ” the Commission stated, “ the claimant ’ s doctors have

recommended a residential care facility. ” A ffi rm ing the d eputy c ommission er ’s award , the full

Commission held, “ According to the consulted medical professionals, the claimant needs the

care provided in a residential facility relative to conditions causally related to her work

accident. ” The Rockingha m School Board now appeals to this Court.

II. A NALYSIS

On an appeal from the Workers ’ Compensation Commission to this Court, “ the appellant

bears ‘ the “ burden of showing ” that the Commission committed “ reversible error. ” ’ ” LKQ Corp. v.

Morales , 78 Va. App. 158, 163 (2023) (quoting Jones v. Crothall Laundry , 69 Va. App. 767, 774

(2019) ) ; see Humphries v. Newport News Shipbuilding & Dry Dock Co. , 183 Va. 466, 476 (1945)

( “ The finding of the Industrial Commission is presumed to be correct and the burde n is on appellant

in this court to point out the error committed by the Commission. ” ). “ [T]he full commission is the

factfinder for c ommission proceedings. ” Meidan, Inc. v. Leavell , 62 Va. App. 436, 442 (2013)

. As

such, “ the Commission ’ s factual finding s are ‘ conclusive and binding ’ if ‘ supported by credible

evidence. ’ ” Jones , 69 Va. App. at 774 (quoting Layne v. Crist Elec. Contractor, Inc. , 64 Va. App.

342, 350 (2015)) ; see Code § 65.2

- 706(A) ; Carrington v. Aquatic Co. , 297 Va. 520, 522

- 23 (2019)

( “ The Commission ’ s determinations of fact are conclusive and binding on appeal

. ” )

. “ This

deference to the Commission ’ s factfinding necessarily requires that we .

. . construe the evidence

in the light most favorable to the prevailing parties bef ore the Commission. ” Jeffreys v.

Uninsured Employer ’ s Fund , 297 Va. 82, 87 (2019).- 7

-

The Rockingham School Board acknowledges that Rohrbaugh fell at work and sustained

a compensable brain injury. On appeal to this Court

, the School Board contends that t he

Commission ’ s award of inpatient residential care is outside the scope of medical attention that

the School Board must furnish to Rohrbaugh. Specifically, the School Board argues that “ the

Commission erred in finding that the appellee ’ s residential care at Willow Estates Retirement, a

licensed assisted living facility, constitutes ‘ other necessary medical attention ’ ” under Code

§ 65.2

- 603. 1 As t his Court has often stated, “ Whether disputed medical treatment is

compensable as ‘ other ne cessary medical attention ’ within the definition of Code § 65.2

- 603

presents a mixed question of law and fact, which this Court reviews de novo

. ” Cumberland

Hosp. & Ace Am. Ins. Co. v. Ross , 70 Va. App. 761, 766 (2019) (quoting Haftsavar v. All Am.

Carpet & Rugs, Inc. , 59 Va. App. 593, 599 (2012)).

Under the Workers ’ Compensation Act (the “ Act ” )

, the Rockingham County School

Board generally has a duty to furnish medical attention for Rohrbaugh ’ s compensable injury.

Code § 65.2

- 603 ; Goodyear Tire & Rub ber Co. v. Pierce , 9 Va. App. 120, 128 (1989). As the

Supreme Court has clearly stated, “ The [Workers ’ Compensation] Act is based upon the premise

that an employer is liable for the condition of an employee resulting from an industrial accident. ”

Carrington. , 297 Va. at 525 (alteration in original) (quoting Am

. Furniture Co. v. Doane

, 230

1 The School Board also argue s , “The Commission erred in finding that the requested

residential care is causally related to the work accident.” As this Court has consistently stated

, “The commission ’ s determination regarding causation is a finding of fact and is binding on

appeal when supported by credible evidence.” Marcus v. Arlington C n ty. Bd. of Supervisors , 15

Va. App. 544, 551 (1993) (citing Holly Farms Foods, Inc. v. Carter

, 15 Va. App. 29 (1992 ) )

. Here, the Commission explicitly found, “[W]e agree with the Deputy Commissioner that this

medical treatment is reasonable, necessary, and causally related to the work accident .”

(Emphasis added). Th is factual finding by the Commission is supported by credible evidence in

the record

, such as the questionnaire responses from Dr. Iudica and Physician’s Assistant

Cres p in

, as well as a clinical report by occupational therapist De P oy. Consequently, we cannot

conclude that the Com mission was without credible evidence in finding that Rohrbaugh ’ s

requested residential care is causally related to her compensable injury.- 8

-

Va. 39, 42 ( 1985 ) )

. The Act provides

, in relevant part

, that the employer must furnish a

physician and other necessary medical attention:

As long as necessary after an accident , the employer shall furnish

or cause to be furnished, free of charge to the injured employee, a

physician chosen by the injured employee from a panel of at least

three physicians selected by the employer and such other

necessary medical attention

.

Code § 65.2

- 603(A)(1) (emphas e s added).

As the Supreme Court has often stated, “When the language of a statute is unambiguous,

we are bound by the plain meaning of that language.” McKellar v. Northrop Grumman

Shipbuilding, Inc. , 290 Va. 349, 354 (2015) (quoting Conyers v. Martial Arts World of

Richmond, Inc

. , 273 Va. 96, 104 (2007) ) . Here, we are tasked with determining whether the

inpatient residential care the Commission awarded to Rohrbaugh qualifies as “such other

necessary medical attention” under Code § 65.2

- 603(A)(1). The term “medical” has been

defined as “of, relating to, or concerned with physicians or with the practice of medicine.”

Webster ’ s Third New International Dictionary 1402 (1993). In turn, the term “medicine” means

“the science and art dealing with the maintenance of health and the prevention, alleviation, or

c ure of disease.” Id

. In the context of determining what “other necessary medical attention”

includes, the Supreme Court has explained that “attention” means “observant care

, ” such as the

“responsibility for or attention to safety and well

- b e ing” for a pa tient. Low Splint Coal Co. v.

Bolling

, 224 Va. 400, 404

- 05 (1982) ( quoting Webster ’ s Third New International Dictionary

141, 338 (1971) ) (holding that structural improvements to a claimant’s home do not qualify as

“necessary medical attention ” because they are not medical care, supervision, or services ).

Consequently, depending on the facts of a particular case, “medical attention” under Code

§ 65.2

- 603(A)(1) can include physician

- authorized observant care to maintain a patient’s health.- 9

-

The Commission here concluded that Rohrbaugh ’ s care at Willow Estates was reasonable

and necessary

, and its factual findings show that Willow Estates provided Rohrbaugh with

inpatient care that included supervision and assistance from medical providers

. T he Commission

found that Willow Estates provides staff and nurses who supervise Rohrbaugh to try to prevent

her from being injured in a fall, who assist her in ambulating ( and if she does suffer a fall )

, and

who also assist her with the administration of medication. Furthermore, the Commission found

that Willow Estates nurses and staff monitor Rohrbaugh and assist her when she experiences

seizures. The Commission credited the opinion of N urse P ractitioner Yoder, who assessed

Rohrbaugh and found that “a facility where she can be monitored 24 hours a day by caregivers

would be the best option for her.” T he Commission a lso clearly credited Dr. Iudica’s opinion

,

which concurr ed with the occupational therapist DePoy’s opinion

, that “the claimant needed

residential care due to her physical and cognitive impairments.” These findings are supported

by testimony from Rohrbaug h ’ s providers in the record and the correspondence and caregivers’

notes that are also in the record

. Given the facts of this case, t he attention and assistance

Rohrbaugh received from medical staff at Willow Estates is the sort of “observant care” for “the

maintenance of health” that can satisfy the standard under Code § 65.2

- 603. See also Bolling

,

224 Va. at 404

- 05 ; Pack v. Little Rock Convention Ctr.

, 427 S.W.3d 586, 592 (Ark. 2013)

(holding that the care provided in an assisted living facility was compensable care under the

Arkansas Workers’ Compensation statute). Consequently, we cannot say that the Commission

erred in finding that Rohrbaugh’s inpatient assisted living care at Willow Estates qualified as

“medica l attention” under Code § 65.2

- 603 in this particular case

.

In addition, c aselaw from Virginia appellate c ourts demonstrates that the role of

establishing what care is medically necessary for a claimant is best left to that claimant ’ s

physician / treating provider. See

, e.g.

, Bolling

, 224 Va. at 404 ; Lynchburg Foundry Co. v. Goad

,- 10

-

15 Va. App. 710, 714

- 15 (1993)

. As this Court stated in Goad

, “ [T] he employer is financially

responsible for the medical attention which the attending physician deems necessary , subject to

review by the Commission. ” Goad , 15 Va. App. at 714 (emphasis added) (quoting Jensen Press

v. Ale , 1 Va. App. 153, 159 (1985) ).

For example, in Goad , this Court held that “other necessary medical attention” included a

nurse travelling to a claimant ’ s home to change his wound dressing even though the claimant

was capable of driving himself to a medical office to receive that sa me treatment. Id

. at 71 2

- 16.

This Court held that

, even though a more cost

- effective method of delivering the treatment was

available, the employer was required to pay for the at

- home treatment because it was authorized

by the claimant ’ s physician ( and the employer organized no alternative treatment )

. Id

. at 71 4

- 1 5

( “ Clearly, this home treatment was authorized by Dr. Chavis, and the fact that he later stated that

it was not necessary to have the treatment rendered at home does not shif t the payment burden to

appellee. ” (emphasis in original) )

.

Furthermore

, t his Court has confirmed that an employer can be required to pay for

treatment

– such as even a claimant ’ s home hot tub

– when the claimant’s treating physician

specifically authorized that purchase. Portsmouth (City of) Sch. Bd. v. Harris

, 58 Va. App. 556,

565 (2011) (citing Reynolds Metals Co. v. Chowning , No. 0800

- 00

- 2 (Va. Ct. App. Aug. 22,

2000) )

. In Chowning , this Court held that a prescription for a home w hirlpool hot tub was

medically necessary because the treating physician concluded that the hot tub could help the

claimant manage the painful symptoms of her condition and because a health club membership

w as medically insufficient to accomplish the same purpose

. Chowning , No. 0800

- 00

- 2. 2 In

2 “Although not binding precedent, unpublished opinions can be cited and considered for

their persuasive value .” Castillo v. Loudoun Cnty. Dep ’ t of Fam. Servs

. , 68 Va. App. 547, 572

n.7 (2018) (quoting Otey v. Commonwealth , 61 Va. App. 346, 350 n.3 (2012)); see also Rule

5A:1(f).- 11

-

Harris

, this Court approvingly cited the provision of a hot tub in Chowning , but clarified that a

general prescription for a hot tub for the claimant in Harris was insufficient to justify the

purchase of a six

- person hot tub spa without evidence showing that the larger multi

- person hot

tub spa was somehow medically necessary

. Harris , 58 Va. App. at 565

- 67 (citing Chowning

,

No. 0800

- 00

- 2 ). Our caselaw demonstrates that the opinion of a claimant ’ s treating provider

authoritatively inform s what is considered “necessary medical attention” for that particular

claimant under Code § 65.2

- 603

.

In the case now before us, the full Commission unanimously found, “According to the

consulted medical professionals, the claimant needs the care provided in a residential facility

relative to conditions causally related to her work accident.” In addition

, the Commission found

that “ the claimant ’ s doctors have recommended a residential care facility [for her]. ” The

Commission noted that Dr. Iudica “agreed the claimant required the care and supervision

provided by an assisted living facility.” It also emphasized that occupational th erapist DePoy

“found the claimant would be ‘ best served by living in an assisted living facility due to the nature

of her physical and cognitive abilities ’ ”

– and also found that Dr. Iudica “agreed with DePoy ’ s

recommendations including assisted living.” In addition, t he Commission credited P hysician’s

A ssistant Crespin ’ s final findings that Rohrbaugh needed residential care, and it also credited

N urse P ractitioner Yoder ’ s opinion that “a facility where she can be monitored 24 hours a day by

caregivers would be the best option for her

. ” These findings of fact and of credibility by the

Commission are binding on appeal because they are supported by credible evidence in the

record

, including Rohrbaugh ’ s medical records, the providers’ notes, dep osition testimony, and

the questionnaires completed by these medical professionals. S ee Code § 65.2

- 706(A) ;

Carrington , 297 Va. at 522

- 23

.- 12

-

Given that the plain meaning of “medical attention” can include physician

- authorized

observant care to maintain the health of a patient and given that Rohrbaugh’s medical providers

here were unanimous in recommending that such care in a residential facility such as Willow

Estates was something she now needed (because of the deterioration o f her medical condition

that originally resulted from her compensable injury)

, we cannot say that the Commission erred

in determining that Rohrbaugh’s treatment in this particular case qualified as “other necessary

medical attention” under Code § 65.2

- 603. Furthermore, our conclusion is bolstered by clear

caselaw from the Virginia Supreme Court that we must liberally construe the Workers ’

Compensation Act to the benefit of workers

. See Dinwiddie Cnty

. Sch. Bd. v. Cole , 258 Va. 430,

436

- 37 (1999) ( “[S] hould doubt remain, [the claimant] is entitled to the benefit of the doubt

[because t]he provisions of the Workers ’ Compensation Act ‘should be liberally construed to

carry out [its] humane and beneficial purposes.’” (fourth alteration in original) (quotin g Baggett

Transp. Co. v. Dillon , 219 Va. 633, 637 (1978)) )

.

III. C ONCLUSION

For all of the foregoing reasons, we do not disturb the decision of the Workers’

Compensation Commission.

Affirmed

.