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
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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.
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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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