VITAL LINK, INC. AND ARGONAUT INSURANCE COMPANY
DENZIL B. HOPE
THE VIRGINIA WORKERS' COMPENSATION COMMISSION
H. D. Wilson (Two Rivers Law Group, P.C., on brief), for
T. Alexander (Bradford E. Goodwin; Reid Goodwin PLC, on
brief), for appellee.
Present: Judges Humphreys, Alston and Decker Argued at
J. HUMPHREYS JUDGE
Link, Inc. ("employer"), argues on appeal that the
Workers' Compensation Commission (the
"Commission") erred when it considered a claim of
compensable consequence by claimant Denzil B. Hope
("Hope"). Employer argues that the Commission erred
in finding that employer had sufficient notice to defend the
claim of compensable consequence, erred in finding Hope's
subsequent injury to be a compensable consequence, and erred
in awarding medical benefits for the compensable consequence
injury. Employer also argues that the Commission erred in
finding sufficient evidence to award Hope continuing wage
uncontested that Hope sustained a compensable work-related
injury to his left knee on June 23, 2015. Beginning on August
18, 2015, Dr. Mark E. Buchanan ("Dr. Buchanan")
began treating Hope for the injury. Dr. Buchanan diagnosed
Hope with a displaced acute medial meniscus tear of the left
knee and chrondromalacia of the left knee, which required
September 18, 2015, Dr. Buchanan performed an arthroscopic
surgery on Hope's left knee. The procedure included
performing a "chondroplasty of the medial femoral
condyle til [sic] a smooth well contoured probe stable
surface was created." The operative report indicated
that the surgery was successful, with no complications. On
September 23, 2015, Hope began physical therapy to regain
strength and function.
post-operative visits and during physical therapy, Hope
experienced swelling of his left knee and reported
significant pain and discomfort. One post-operative report
noted that Hope "has constant pain that gets worse with
activity" and that Hope "[g]ets sharp shooting
pains as well." After a kenalog and lidocaine injection
into Hope's left knee did not ease his pain, Dr. Buchanan
scheduled an MRI for December 15, 2015.
December 29, 2015, Dr. Buchanan reviewed the MRI of
Hope's left knee. According to Dr. Buchanan's office
note, the MRI showed a "subchondral fracture" of
Hope's "medial femoral condyle." Dr. Buchanan
also described "full-thickness loss" of cartilage
within the joint. Discussing the injury further, Dr. Buchanan
noted that "[t]he fracture has the appearance of a
stress fracture" that "was not present on his
previous MRI so is [sic] not directly related to his work
injury but may be due to stresses on his knee during his
January 2016, Dr. Buchanan released Hope to all activities
even though Hope continued to experience pain and swelling in
his left knee. In a letter dated January 13, 2016,
employer's claim administrator informed Hope that his
benefits were terminated and that she would "deny any
medical bills related to the fracture of the right
as this is not compensable under the Workers'
compensation claim." Hope was scheduled for a follow-up
appointment with Dr. Buchanan on January 29, 2016, but Hope
cancelled on January 28, 2016.
returned to work with a different employer in late March
2016. After doing so, however, Hope's left knee
"began to swell" and he experienced significant
pain. On May 11, 2016, Hope visited his family physician, Dr.
Ghayth M. Hammad ("Dr. Hammad"). Hope did not
return to see Dr. Buchanan because it was Hope's
understanding that Dr. Buchanan was unavailable. Dr. Hammad
removed fluid from Hope's left knee, but Hope's
symptoms did not abate. Dr. Hammad subsequently arranged for
Hope to receive treatment from Dr. Sameer G. Badarudeen
("Dr. Badarudeen"), an orthopedic surgeon.
obtained permission from employer's claim administrator
to receive a new MRI from Dr. Badarudeen. While waiting for
the new MRI, Dr. Badarudeen removed fluid from Hope's
knee and noted Hope's constant pain. Also, in an office
note dated June 20, 2016, Dr. Badarudeen stated that upon his
review of Hope's MRI from December 15, 2015, Hope's
femur fracture was "related to his Worker's Comp.
injury" without any further discussion. On June 27,
2016, Dr. Badarudeen took a new MRI and compared it to the
December 15, 2015 MRI. According to Dr. Badarudeen, the new
MRI "showed full-thickness cartilage loss and . . .
tricompartmental disease[.]" Based on the
ineffectiveness of previous conservative treatments, Dr.
Badarudeen recommended a left total knee replacement.
14, 2016, Hope filed a claim for temporary total disability
benefits from May 11, 2016, and continuing. On the line
titled "Parts of Your Body Injured, " Hope wrote
"[i]t was my left knee. Done [sic] had one surgery and
waiting on a second one." Hope did not mark the box
indicating he sought a lifetime award of medical benefits.
October 17, 2016, Dr. Badarudeen performed a left total knee
replacement on Hope. Prior to the surgery, employer's
claim administrator informed both Hope and Dr.
Badarudeen's office that employer would not pay for Dr.
Badarudeen's treatment of Hope's left knee.
to the scheduled hearing before the deputy commissioner, Hope
moved for a continuance and a de bene esse
deposition of his cousin, Ann Howard, who was expected to
testify regarding her conversation with employer's claim
administrator about Hope's medical treatment with Dr.
Badarudeen. Employer objected, noting to the deputy
commissioner that there was "currently only one issue
pending before your Honor and that is . . . [Hope's]
claim for temporary total disability benefits."
According to employer, Ann Howard's testimony was
therefore irrelevant to the issue before the deputy
commissioner. Hope countered that a "request for medical
benefits is implicit in the filing of an application for
benefits." Ruling on the issue, the deputy commissioner
granted Hope's motion for a de bene esse
deposition after finding it appropriate under the
the hearing, the deputy commissioner found that employer had
sufficient notice that Hope was seeking medical benefits. As
a result, the deputy commissioner awarded both wages and
medical benefits, including compensation for the left total
knee replacement performed by Dr. Badarudeen. On November 7,
2017, the full Commission affirmed the deputy commissioner,
finding that "the record demonstrates [that Hope's]
stress fracture was a compensable consequence of his original
injury." The Commission also found that because
employer's insurer denied responsibility for that injury
"[Hope] was free to select a physician of his
choosing." As a result, the Commission found that
employer was "responsible for the reasonable, necessary,
and casually related medical treatment rendered by Dr.
Badarudeen." Finally, the Commission concluded that
evidence in the record established Hope's ongoing
disability and that the evidence indicated the need for left
total knee replacement surgery. This appeal follows.