Opinion
Record No. 0743-92-4
November 3, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Arturo Hernandez, on brief), for appellant.
(Walter S. Boone, III; Anderson Corrie, on brief), for appellees.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and the briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Rene Aguilar contends that the commission erred in (1) finding that the employer was not responsible for the cost of medical treatment rendered by Dr. Montague Blundon, III; (2) finding that Aguilar did not prove that he was disabled from work after April 4, 1991; (3) finding that Aguilar was not entitled to vocational rehabilitation; and (4) not considering Aguilar's Petition to Reopen the Case.
I.
"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 to the patient." Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). Unless we can say as a matter of law that Aguilar's evidence was sufficient to sustain his burden of proof, then the commission's finding is binding and conclusive upon us.Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The evidence before the deputy commissioner, at the time of the hearing, consisted only of Aguilar's testimony that Dr. Jose F. Bonelli, Aguilar's treating physician, referred him to Dr. Blundon. There was no evidence of the referral contained in the records submitted to the commission from Drs. Bonelli and Blundon. The deputy commissioner left the record open for one week after the hearing in order to enable Aguilar to submit documentation supporting the claimed referral. Instead of submitting such documentation, Aguilar submitted an undated slip from Dr. Bonelli not directed to a specified doctor making a general referral. This slip did not prove the claimed referral, and was, quite properly, not considered sufficient by the commission. Thus, we cannot say that the commission erred in finding that the treatment rendered by Dr. Blundon was unauthorized and was not the responsibility of the employer's insurance carrier.
II.
The record contains credible evidence to support the commission's finding that the claimant failed to meet his burden of proving that he was disabled from work after April 4, 1991 as a result of his industrial accident of May 17, 1990. Findings of fact made by the commission are binding and conclusive on review when supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The evidence proves that Dr. Bonelli last examined Aguilar on March 8, 1991. There is no evidence from Dr. Bonelli after this date which proves that Aguilar was disabled as a result of his industrial accident. On April 4, 1991, Dr. Alvaro A. Sanchez, orthopedic surgeon, reported that based upon his examination of Aguilar, he found no objective signs of dural irritation or defective condition. Furthermore, in his report of September 6, 1991, Dr. Henry L. Feffer, independent orthopedic surgeon, upon review of Aguilar's records, opined that Aguilar had no residual physical impairment and that he could return to work without restrictions.
Accordingly, where there is conflicting evidence, we cannot say that the trial court erred in finding that Aguilar failed to meet his burden of proving disability beyond April 4, 1991, the date of Dr. Sanchez's report. Dr. Blundon's July 12, 1991 disability slip, which provided no indication of his findings or the cause of Aguilar's disability, was properly discounted by the commission.
III.
The commission did not err in denying Aguilar's request for vocational rehabilitation. First, the record supports a finding of disability ending April 4, 1991, therefore there is no basis for an award of vocational rehabilitation. Second, the slip from Dr. Bonelli, dated April 20, 1991, stating only "Vocational Rehabilitation" without further elaboration is insufficient to justify an award of vocational rehabilitation. This evidence alone does not provide the commission with a means of considering the relative costs and benefits to be derived from a vocational rehabilitation program in order to determine if the program meets the "reasonable and necessary" standard of Code § 65.2-603(A)(3). See Yeargain v. Daniel Int'l, 9 Va. App. 82, 384 S.E.2d 114 (1989).
IV.
The commission did not err in failing to act upon Aguilar's Petition to Reopen Case. The evidence Aguilar sought to introduce was merely a further explanation of Dr. Bonelli's undated note. Such evidence could have been obtained with due diligence prior to the hearing and/or within the time period that the deputy commissioner held the record open. See Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 401 S.E.2d 200 (1991).
For the reasons stated, we affirm the decision of the commission.
Affirmed.