Opinion
Record No. 1340-93-2
Decided: June 28, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Jay G. Kauffman; Kauffman Associates, on brief), for appellant.
(Daniel R. Lahne; Knight, Dudley, Dezern Clarke, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
George R. Britt, Jr. (claimant) contends that the Workers' Compensation Commission erred in finding that (1) he failed to prove he sustained a change in condition; (2) a change in treating physicians was not justified; and (3) Purolator Courier Corporation and its insurer (hereinafter collectively referred to as "employer") were not responsible for the cost of unauthorized medical treatment which claimant received from Drs. Lawrence Morales, Raymond Iglecia, and William R. Thesier, the Medical College of Virginia ("MCV"), and various hospital emergency rooms. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the commission. Rule 5A:27. As the parties are familiar with the facts of this case, we recite them only as necessary to explain our decision.
On 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). Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
I. Change in Condition
"General principles of workman's compensation law provide that '[i]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.' " Great Atl. Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987). Unless claimant proved as a matter of law that he sustained a change in condition causally related to his August 10, 1985 compensable industrial accident, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Dr. John S. Wagner, claimant's treating orthopedic surgeon, stated in his latest medical report, dated May 30, 1990, that claimant's condition had not changed in five years. In September 1989, Dr. Wagner approved a light duty job for claimant which was offered to him by employer. Claimant subsequently refused employer's offer. The commission was entitled to accept Dr. Wagner's opinion over that of the other medical providers relied upon by claimant. Dr. Wagner's opinion provides credible evidence to support the commission's finding that claimant failed to prove a change in his physical capacity to work. Moreover, claimant testified that his current symptoms were the same as those he had suffered from since the date of the original accident. Accordingly, we cannot say as a matter of law that claimant proved a change in condition.
II. Change in Treating Physicians
The commission found that claimant failed to present persuasive evidence to support a change in treating physicians. Claimant admitted that he had not received a great deal of physical benefit from his treatment with Dr. Iglecia or from his treatment at MCV. Moreover, claimant failed to produce any clear and convincing evidence that Dr. Wagner's treatment was inadequate. Accordingly, we cannot say as a matter of law that the commission erred in denying claimant's request for a change in treating physicians.
III. Medical Expenses
"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 of [sic] the patient." Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).
There is no evidence in the record that Dr. Wagner ever referred claimant to any of the physicians or medical providers for which he sought to hold employer responsible. The record does not indicate that claimant ever requested a change in treating physicians from Dr. Wagner or from employer. Moreover, there is no evidence that Dr. Wagner ever abandoned his treatment of claimant. Rather, claimant's testimony and the medical records provide substantial credible evidence to support the commission's finding that claimant decided to consult his family physician, Dr. Russell Carter, on his own, without the benefit of a referral from the treating physician or from employer. Thus, any referrals made by Dr. Carter would also have been unauthorized. Furthermore, the record lacks evidence which would justify invoking the "good cause" exception to the general rule regarding the compensability of medical expenses. Accordingly, we cannot say that the commission erred in finding employer was not responsible for the costs of medical treatment by Drs. Morales, Iglecia, and Thesier, and by physicians at MCV.
The commission also found that claimant's visits to the emergency rooms of various hospitals were not proven to be necessary emergency care. The record lacks medical evidence to demonstrate that on any of these occasions claimant was in an emergency situation which precluded him from seeking treatment from his treating physician. Accordingly, the commission did not err in denying claimant reimbursement for these expenses.
For the reasons stated, we affirm the commission's decision.
Affirmed.