Charles Francis Carter v. Arlington County Fire Dep

• Court: Court of Appeals of Virginia
• Decided: October 15, 2002
• Docket: 1328024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Overton

CHARLES FRANCIS CARTER MEMORANDUM OPINION* v. Record No. 1328-02-4 PER CURIAM OCTOBER 15, 2002 ARLINGTON COUNTY FIRE DEPARTMENT

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Charles Francis Carter, pro se, on briefs).

(Susan A. Evans; Jimese Sherrill; Leighton Kirby; Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellee.

Charles Francis Carter contends that (1) Arlington County

Fire Department has failed to provide him with a panel of

physicians in LaCrosse, Wisconsin as ordered by Deputy

Commissioner Colville at the November 13, 2000 hearing; and (2)

the Workers' Compensation Commission erred in finding that he

failed to prove the Department was responsible for the

reimbursement and/or payment of certain medical bills, mileage

expenses, vehicle repairs, and home air conditioning repairs.

Upon reviewing the record and the parties' briefs, we conclude

that this appeal is without merit. Accordingly, we summarily

affirm the commission's decision. Rule 5A:27.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.

At the November 13, 2000 hearing before Deputy Commissioner

Colville, the Department agreed to provide Carter with a panel

of physicians in Wisconsin within three weeks. On review before

the full commission, Carter asserted that the Department offered

him a defective panel. The commission declined to consider this

issue because it was not properly before it for adjudication,

noting that Carter had notified the deputy commissioner after

the hearing that he was not satisfied with the panel and that "a

further hearing will be necessary on this issue."

Because the commission has not decided this issue and has

ruled that a hearing is necessary, we will not consider it on

appeal. See Green v. Warwick Heating & Plumbing Co., 5 Va. App.

409, 413, 364 S.E.2d 4, 6 (1988); Rule 5A:18.

II.

On appeal, we view the evidence in the light most favorable

to the prevailing party below. R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 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).

Carter sustained a compensable lower back injury while

working as a firefighter on January 24, 1980. The Department

- 2 - accepted the claim as compensable. Carter received a diagnosis

on January 2, 1990 and January 8, 1991 that he suffered from

bilateral carpal tunnel syndrome arising out of and in the

course of his employment. On March 30, 1992, the commission

entered an award for lifetime medical treatment on that claim.

On January 5, 1996, the commission entered a further award in

favor of Carter for an occupational disease, asthma, providing

him with lifetime medical treatment.

On June 12, 2000, Carter filed an application seeking

reimbursement for thirty separate items related to various

medical expenses, mileage expenses, vehicle repair expenses, and

home air conditioning repair expenses allegedly related to his

asthma. The Department agreed to one of those expenses for

mileage to Dr. Lane's office on July 22, 1999, but contested the

remaining twenty-nine items. On November 13, 2000, both parties

presented evidence at a hearing before Deputy Commissioner

Colville.

The deputy commissioner denied the twenty-nine contested

claims. On review, the commission found that it had previously

miscalculated the amount the Department owed to Carter for air

conditioning repairs on his 1989 Plymouth van and that the

Department owed Carter $220.77 for the May 1996 and July 1997

repairs. Otherwise, the commission affirmed the denial of

Carter's claims.

- 3 - The commission's opinions contain lengthy recitations of

the history of Carter's numerous claims, the prior opinions

rendered by the commission and this Court, and detailed accounts

of each of Carter's claimed expenses and the reasons for their

denial. We have thoroughly reviewed the record, and we hold

that it supports the commission's findings that the twenty-nine

items have either been paid by the Department, not proven by

Carter to be medically reasonable or necessary, and/or barred by

the doctrine of res judicata. Accordingly, we cannot find as a

matter of law that Carter's evidence sustained his burden of

proof.

For these reasons, we affirm the commission's decision.

Affirmed.

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