Michael A. Foti v. Arlington County ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MICHAEL A. FOTI
MEMORANDUM OPINION *
v. Record No. 0882-97-4 PER CURIAM
JULY 29, 1997
ARLINGTON COUNTY
FROM THE VIRGINIA
WORKERS' COMPENSATION COMMISSION
(Michael A. Foti, pro se, on briefs).
(Lisa C. Healey; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellee.
Michael A. Foti (claimant) contends that the Workers'
Compensation Commission (commission) erred in refusing to award
him reimbursement for (1) miles he travelled to medical visits
prior to 1986; (2) attorneys' fees, expert witnesses' fees and
transcript costs incurred with respect to a 1991 hearing;
(3) attorneys' fees incurred in securing a Memorandum of
Agreement in 1983; (4) the cost of a Balan's chair; and (5) the
cost of Dr. Lucy White Ferguson's chiropractic treatment.
Claimant also requests an award for cost-of-living adjustments.
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.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E. 788, 788 (1990). Unless
we can say as a matter of law that claimant's evidence sustained
his burden of proof, the commission's findings are binding and
conclusive upon us. See Tomko v. Michael's Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Mileage Reimbursement
Claimant requested mileage reimbursement for using his
personal vehicle during 1983 to travel from Arlington to
Alexandria, Virginia for orthopedic treatment. He also requested
reimbursement for expenses incurred in travelling from his home
in Seabrook, Maryland to Leeland Memorial Hospital for physical
therapy through September, 1983.
Because claimant did not provide evidence of the number of
miles travelled or the specific dates of the travel, we cannot
find as a matter of law that claimant's evidence sustained his
burden of proof.
Attorneys' Fees, Expert Witnesses' Fees, and Transcript Costs
Claimant's requests for attorneys' fees, expert witnesses'
fees and transcript costs incurred in 1983 and 1991 were not
timely. Moreover, nothing in the Workers' Compensation Act
supports an award of these expenses under the circumstances of
this case.
Balan's Chair
"Whether the employer is responsible for medical expenses
. . . depends upon: (1) whether the medical service was causally
2
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).
Claimant purchased the Balan's chair on his own initiative.
He presented no evidence that the purchase of the chair was
medically necessary or causally related to his compensable injury
by accident. Accordingly, we cannot find as a matter of law that
claimant's evidence sustained his burden of proof.
Dr. Ferguson's Treatment
Claimant testified that a friend referred him to Dr.
Ferguson in 1983 for chiropractic treatment. Claimant admitted
that his treating physician, Dr. Henry Danaceau, did not refer
him to Dr. Ferguson. Claimant also admitted that he received a
letter from his employer denying authorization for Dr. Ferguson's
treatment. Absent a proper referral by claimant's treating
physician for him to seek treatment from Dr. Ferguson, we cannot
find as a matter of law that claimant's evidence sustained his
burden of proving employer responsible for the cost of Dr.
Ferguson's treatment. See Shenandoah Prods., Inc. v. Whitlock,
15 Va. App. 207, 210-11, 421 S.E.2d 483, 485 (1992).
Cost-of-Living Adjustments
Claimant did not make clear in his briefs the error he
alleges that the commission made in rendering its award of
cost-of-living adjustments. In any event, our review of the
3
record does not reveal any error with respect to this portion of
the commission's decision. Accordingly, it will not be disturbed
on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
4