Opinion
Record No. 0387-94-3
Decided: August 2, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Michael F. Blair; Penn, Stuart, Eskridge Jones on brief), for appellants.
(Richard D. Kennedy; Sturgill, Mullins Kennedy on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Southwest Office Supply and its insurer (hereinafter collectively referred to as "employer") contend that the Workers' Compensation Commission erred in finding that (1) there was a valid referral of Linda E. Smith (claimant) by Dr. Dwight L. Bailey to Dr. John T. Glick; (2) acupuncture treatment rendered by Dr. Glick was reasonable and necessary; and (3) employer was responsible for the payment of services rendered by Dr. Glick and associated travel expenses.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27. As the parties are familiar with the facts, we recite them only as necessary to explain our decision.
Upon appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "Whether the employer is responsible for medical expenses . . . depends upon: (1) whether the medical service was causally related to the industrial injury; (2) whether such other medical attention was necessary; and (3) whether the treating physician made a referral to [sic] the patient." Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).
I. Referral to Dr. Glick
The commission found that Dr. Bailey referred claimant to Dr. Glick for acupuncture treatment. Credible evidence supports this finding.
It was undisputed that Dr. Bailey was an authorized treating physician. Claimant testified that Dr. Bailey referred her to Dr. Glick for treatment. In addition, Dr. Bailey's September 15, 1992 and December 1, 1992 office notes demonstrate that he knew that claimant was going to Dr. Glick for acupuncture treatment. Dr. Bailey made no indication in his notes that he did not approve of this treatment. From claimant's testimony and the evidence of Dr. Bailey's awareness of Dr. Glick's treatments, it can reasonably be concluded that Dr. Bailey knew and approved of Dr. Glick's acupuncture treatment, and that Dr. Bailey had referred claimant to Dr. Glick for such treatment. "Where reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
II. Reasonableness and Necessity of Acupuncture Treatment
The commission found that the acupuncture treatment received by claimant from Dr. Glick was reasonable and necessary in light of claimant's referral to Dr. Glick by her treating physician and the resulting improvement of her symptoms. These findings are supported by credible evidence.
Claimant had been diagnosed as suffering from reflex sympathetic dystrophy related to her compensable January 18, 1989 industrial accident. Claimant testified that she saw Dr. Glick for treatment of her problems related to the work injury and that his treatment was helpful. In a letter dated February 11, 1993, Dr. Glick confirmed that he was treating claimant for reflex sympathetic dystrophy related to her work injury. Based upon this record, we cannot say as a matter of law that the commission erred in finding the acupuncture treatment reasonable, necessary, and causally related to claimant's January 18, 1989 compensable industrial accident.
III. Lack of Medical Reports filed by Dr. Glick
Employer contends that the commission should not have held it responsible for payment of medical services provided by Dr. Glick, because Dr. Glick failed to provide medical reports to the employer, insurance carrier, or the commission.
Code Sec. 65.2-604 requires a physician to furnish copies of his reports to the injured employee, employer, or insurer only "upon request" of one of these parties. The commission found that such medical records were never requested from Dr. Glick by employer or the insurance carrier. Upon reviewing the record, we likewise find no evidence that employer or the carrier requested such records. The burden of demonstrating that a request was made must, of necessity, be borne by the party complaining of the physician's failure to provide reports. To hold otherwise would place the opposing party in the untenable position of proving a negative concerning matters in which it was not directly involved.
For the reasons stated, we affirm the commission's decision.
Affirmed.