Opinion
Record No. 1410-93-4
Decided: May 24, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed in part, reversed in part, and remanded.
Wesley G. Marshall (Peter M. Sweeny and Associates, P.C., on brief), for appellant.
Cecil H. Creasey, Jr. (Marianne N. Macon; Sands, Anderson, Marks Miller, on brief), for appellees.
Present: Judges Coleman, Fitzpatrick and Retired Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this workers' compensation appeal, we hold that the commission erred in finding the employer not responsible for the cost of treatment rendered by a myotherapist to whom the claimant had been referred by her treating physician. In addition, we hold that the commission erred in finding that claimant failed to prove her entitlement to reimbursement for mileage expenses incurred in traveling to and from health care providers between 1985 and 1992, but did not err in denying mileage reimbursement for expenses estimated to have been incurred by claimant from 1984 to 1986. Accordingly, we reverse and remand the claim with the directions that the commission enter an award requiring the employer's insurer to pay the reasonable charge of the myotherapist and to pay the medical mileage expenses for 16,427 miles traveled by claimant.
I. REFERRAL TO MYOTHERAPIST
In 1984, S. Nooshin Javan was employed as a nurse-midwife when she sustained a compensable injury to her back. Javan received workers' compensation for her disability until 1992, when the commission suspended her benefits because Javan had failed to market her remaining work capacity. Javan filed with the commission a claim for payment of medical bills for treatment rendered by several physicians between 1984 and 1992.
The commission denied payment for treatment rendered by Nancy Shaw, a myotherapist, from the middle of 1988 to 1990. Javan had been referred to Shaw by Dr. David Zhon, the claimant's authorized treating physician. In a letter written prior to Javan's myotherapy treatments, Dr. Zhon stated "the patient continues to have some muscular problems and it was decided to refer her to a myotherapist (Nancy Shaw)."
The employer presented evidence questioning the efficacy of the treatment rendered by Nancy Shaw; however, the commission made no findings whether such treatments were necessary or unnecessary or reasonable or unreasonable. Javan had the burden of proving by a preponderance of the evidence that she was entitled to compensation and that medical services received were necessary and their costs reasonable. See Conner v. Bragg, 203 Va. 204, 207-08, 123 S.E.2d 393, 396 (1962).
Under Code Sec. 65.2-603, an employer has a duty to furnish and a claimant has a duty to accept "other necessary medical attention" for a compensable injury. Whether an employer is financially responsible for medical treatment provided by a medical care giver who is not the claimant's treating physician, 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 the patient." Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).
The myotherapy was administered by Nancy Shaw in order to relieve Javan's pain resulting from her work-related back injury. Dr. Zhon verified the necessity of the myotherapy when he stated that "patient [Javan] continues to have some muscular problems," and he referred her to the myotherapist. On similar facts, we have held that "the employer is financially responsible for the medical attention which the attending physician deems necessary." Jensen Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525 (1985) (employer responsible for clinic bills when claimant, suffering from neck and shoulder injury, was referred by treating physician to pain clinic). "[N]either the employer nor its insurance carrier may limit the treating physician in the medical specialist, or treating facilities to which the claimant may be referred for treatment." Jensen Press, 1 Va. App. at 158, 336 S.E.2d at 525 (quoting Beauchamp v. Cummins Hart, 60 O.I.C. 37, 39 (1982)).
It was incumbent upon Javan to accept myotherapy upon referral from her treating physician or risk violating her duty to receive prescribed medical treatment. See Davis v. Brown Williamson Tobacco Co., 3 Va. App. 123, 128-29, 348 S.E.2d 420, 423 (1986); Richmond Memorial Hospital v. Allen, 3 Va. App. 314, 317, 349 S.E.2d 419, 421 (1986).
Under these facts, Javan was entitled to have her employer pay the expenses of the myotherapist upon referral from her treating physician, and the commission erred in finding the employer not to be responsible for these medical expenses.
II. MILEAGE REIMBURSEMENT
Javan sought reimbursement for mileage expenses incurred in traveling to and from various authorized health care providers. Javan submitted and signed under oath a seven-page summary of mileage traveled. The first part of the summary, covering 1985 to 1992, requested reimbursement for 16,427 miles, a figure calculated by multiplying the distance to each provider's office by the number of trips made to each provider. Although the first part of the summary did not list each date of travel, it listed the number of trips to each provider.
In the second part of the summary, Javan requested reimbursement for an estimated 10,000 miles traveled to and from additional health care providers between 1984 and 1986. This part of the summary did not show the number of trips to specific providers, but merely estimated the total mileage to all providers as a group. The deputy commissioner approved some of the mileage reimbursement and denied reimbursement for other mileage expense, stating that "[most of] the mileage claim [is] inherently fraught with speculation such that a presentation of [mileage] . . . without actual dates of the trips cannot be now honored."
The commission "affirmed the denial of mileage expenses for the reasons set forth in the deputy commissioner's opinion." Significantly, the employer offered no testimony or documentation refuting or contradicting Javan's mileage calculations, which came in under oath and unquestioned.
A claimant has the burden of proving by a preponderance of the evidence that she is entitled to compensation. See Conner, 203 Va. at 207-08, 123 S.E.2d at 396. Although we accept the factual findings of the commission if supported by credible evidence, James v. Capitol Steel Construction Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488-89 (1989), here the commission made no express finding that Javan's evidence and documentation for mileage reimbursement were based on false or exaggerated miscalculations. In Javan's claim for 16,427 miles, she requested reimbursement and in her request specified (1) the provider's office for each trip, (2) the number of trips made to each provider's office, (3) the time period in which such trips were made, and (4) the mileage per trip. Her evidence was more than an estimate and was not speculation. Once Javan satisfied her burden of proof with respect to the first part of the summary by testifying under oath that her mileage calculations of 16,427 were true, and the employer did not refute her testimony, the commission was required to make a factual finding regarding the mileage.
The commission cannot arbitrarily disregard uncontradicted testimony of an unimpeached witness when such testimony is not inherently incredible or inconsistent with the evidence in the record. Morris v. Badger Powhatan/Figgie Int'l Inc., 3 Va. App. 276, 279-80, 348 S.E.2d 876, 877 (1986). In this case, Javan's sworn testimony and written summary of mileage calculations for the 16,427 miles are sufficiently specific to meet her burden of production. See McGregor v. Crystal Food Corp., 1 Va. App. 507, 508, 339 S.E.2d 917, 918 (1986). No credible evidence supports the commission's finding that Javan's claim for 16,427 miles reimbursement and her calculations were "fraught with speculation."
In the second part of her summary, Javan estimated that she traveled 10,000 miles between 1984 and 1986. The commission did not err in denying reimbursement because Javan failed to satisfy her burden of proving that the medical mileage expenses were actually incurred. Javan provided the commission with no specifics, but only a rough estimate of her mileage expenses incurred several years ago. No records supported Javan's claim for this mileage.
Accordingly, with respect to the 16,427 miles, Javan satisfied her burden, and the commission, in the absence of evidence presented by the employer, was required to have the employer reimburse her for medical mileage. With respect to the 10,000 mile estimate, Javan failed to satisfy her burden of proving that these expenses were incurred, and the commission did not err in denying her request. Accordingly, we reverse in part and affirm in part.
Affirmed in part, reversed in part, and remanded.