Johnny A. Murray v. Westmoreland Coal Company ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
JOHNNY A. MURRAY
v. Record No. 1090-95-3 MEMORANDUM OPINION *
PER CURIAM
WESTMORELAND COAL COMPANY OCTOBER 3, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Donald E. Earls, on briefs), for appellant.
(Michael F. Blair; Penn, Stuart, Eskridge & Jones,
on brief), for appellee.
Johnny A. Murray ("claimant") contends that the Workers'
Compensation Commission erred in finding that Westmoreland Coal
Company ("employer") was not responsible for the cost of a
Craftmatic Adjustable Bed ("the bed") prescribed by Dr. Michael
Ford, the treating physician, because claimant failed to prove
that the bed was reasonable and medically necessary. Claimant
also argues that the commission erred in considering Dr. Ford's
April 22, 1993 progress note and in not considering his October
6, 1994 letter as after-discovered evidence. 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. 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.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant met his burden
of proving that employer was responsible for the cost of the bed,
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).
Code § 65.2-603 (formerly Code § 65.1-88) provides: "As long
as necessary after an accident the employer shall furnish or
cause to be furnished, free of charge to the injured employee, a
physician . . . and such other necessary medical attention."
(Emphasis added.)
The commission denied claimant's request that employer be
held responsible for the cost of the bed. The commission found
that (a) Dr. Ford could not render an opinion as to the medical
necessity of the bed because he was not familiar with the bed,
(b) Dr. Ford acknowledged that regular physical therapy would
provide superior care over the bed, (c) Dr. Ford failed to opine
that claimant required round-the-clock physical therapy, and (d)
no evidence established that a two-person bed (as opposed to a
one-person model) was reasonable and necessary.
Dr. Ford's medical records, letters, and deposition
testimony, which were all considered by the commission, support
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its findings. Based upon the lack of evidence that the bed was
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Because it appears from the record that the commission
considered all of the medical evidence before it, including Dr.
Ford's April 22, 1993 progress note and his October 6, 1994
letter, we do not find it necessary to address claimant's
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reasonable and medically necessary, we cannot say as a matter of
law that the commission erred in finding that employer was not
responsible for the cost of the bed. Accordingly, we affirm the
commission's decision.
Affirmed.
argument concerning these medical reports.
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