Opinion
Record No. 2195-92-4
July 20, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Benjamin J. Trichilo (Lewis, Trichilo, Bancroft McGavin, P.C., on briefs), for appellants.
Diane C.H. McNamara, for appellee.
Present: Judges Barrow, Coleman and Koontz.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal from the Workers' Compensation Commission, we hold that the employee was entitled to compensation benefits as awarded by the commission and that the employer is required to pay the charges of the treating physician to whom the employee was referred.
The employer, having voluntarily paid benefits to the employee and having failed to file a memorandum of agreement, had the burden of proving a change of condition. National Linen Service v. McGuinn, 5 Va. App. 265, 270, 362 S.E.2d 187, 191 (1987). The employee's refusal to sign a memorandum of agreement providing for the termination of compensation did not alter the employer's obligation to file a memorandum of agreement reflecting the payment of compensation which was made. The employee signed memoranda of agreement reflecting the payment of compensation, but the employer chose not to file them. The employer, therefore, had the same burden as if it had complied with the statutory requirement to file the memoranda of agreement reflecting the actual payment of compensation.See id.
The commission found that the employer did not prove a change of condition and that the employee was disabled for the period for which the commission awarded compensation. We conclude that the employer did not, as a matter of law, carry its burden to show that the employee was not disabled. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Furthermore, we cannot conclude that the employee was disabled and entitled to benefits beyond the period for which the commission awarded compensation. Evidence was presented from which the commission could have found that the employee was not disabled during the period that followed. We are, therefore, bound by the commission's finding and may not disturb it, even if contrary evidence also appears in the record. Code § 65.2-706; Wagner Enterprises v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Finally, evidence supported the commission's findings that the employer impliedly consented to the employee's change of physician and that she was referred to the second physician by her initial treating physician. Therefore, the commission correctly required the employer to pay the charges of the second physician who treated the employee. Code § 65.2-603.
For these reasons, the decision of the commission is affirmed.
AFFIRMED.