COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
CHAP VAN NGO
MEMORANDUM OPINION*
v. Record No. 2566-00-4 PER CURIAM
APRIL 17, 2001
N & L CARPENTRY AND
EMPLOYERS INSURANCE OF WAUSAU
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Chap Van Ngo, pro se, on brief).
(Susan A. Evans; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellees.
Chap Van Ngo (claimant) contends that the Workers'
Compensation Commission erred in finding that (1) his claim for
additional temporary total disability benefits was barred by the
applicable statute of limitations contained in Code § 65.2-708;
(2) he was not entitled to an award of permanent partial
disability benefits; (3) employer was not responsible for
medical expenses for services rendered to claimant by Dr. Chan
Dang-Vu and Vencor Hospital; (4) he was not entitled to
reimbursement for cash advances, ATM withdrawals, gas and food
charges, automobile repair bills and office supplies as these
did not constitute "medical expenses" under the Workers'
Compensation Act ("the Act"); and (5) employer was not
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
responsible for claimant's credit card charges for
"prescriptions and sundries." 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. See Rule 5A:27.
I. Statute of Limitations
Claimant sustained a compensable injury by accident on
March 17, 1997 while in the course of his employment with N & L
Carpentry. Pursuant to a Memorandum of Agreement and Agreed
Statement of Fact submitted by the parties to the commission, on
July 17, 1997, the commission awarded claimant temporary total
disability benefits for March 25 and 26, 1997 and lifetime
medical benefits causally related to his compensable injury.
Code § 65.2-708(A) provides that the commission may not
review a claim for change in condition "after twenty-four months
from the last day for which compensation was paid, pursuant to
an award under this title . . . ." Claimant's claim for
additional compensation benefits was filed on July 26, 1999,
more than twenty-four months after March 26, 1997, the last day
for which he was paid compensation pursuant to the prior award.
Accordingly, the commission did not err in finding that
claimant's claim for temporary total disability benefits was
time-barred.
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II. Permanent Partial Disability Benefits
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Code § 65.2-503(C)(1) provides compensation for permanent
and total incapacity when there is "loss of both hands, both
arms, both feet, both legs, both eyes, or any two thereof in the
same accident . . . ." Subsection (D) provides that "the
permanent loss of the use of a member shall be equivalent to the
loss of such member, and for the permanent partial loss or loss
of use of a member, compensation may be proportionately
awarded."
To meet his burden of proof under this section, claimant
was required to prove that he is unable to use his permanently
impaired members in gainful employment. See Virginia Oak
Flooring Co. v. Chrisley, 195 Va. 850, 857, 80 S.E.2d 537, 541
(1954). In addition, claimant was required to "establish that
he has reached maximum medical improvement and . . . his
functional loss of capacity [must] be quantified or rated."
Cafaro Constr. Co. v. Strother, 15 Va. App. 656, 661, 426 S.E.2d
489, 492 (1993). 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
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Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
In denying claimant's claim for permanent partial
disability benefits, the commission found as follows:
[C]laimant has not specified upon what basis
he claims an award of permanency. The
medical records do not reflect that the
claimant has suffered a permanent loss of
function in any scheduled member or that an
injury to a non-scheduled member has caused
a permanent limitation in the use of a
scheduled member. Although Dr. [Sheila]
Jahan initially discharged the claimant from
her care on July 21, 1998, and opined that
he had reached maximum medical improvement,
she resumed his care in January of 1999 and
continues to causally relate her treatment
to the compensable accident of March 1997.
There is no specific medical opinion in the
record suggesting that a particular
scheduled member injury had reached maximum
medical improvement, nor is their [sic] any
permanency rating found in the medical
records.
The commission's findings are amply supported by the
medical records. In the absence of any medical evidence of
permanent impairment, maximum medical improvement, and a
quantified or rated functional loss of capacity, we cannot find
as a matter of law that claimant's evidence sustained his burden
of proof.
III. Medical Expenses of Dr. Chan Dang-Vu and Vencor Hospital
In the deputy commissioner's August 19, 1999 opinion, she
addressed whether employer had paid the medical expenses of
Dr. Chan Dang-Vu and Vencor Hospital and whether it was still
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responsible for those expenses. The deputy commissioner found
that the bills for Vencor Hospital had already been paid by
employer and that the medical treatment of Dr. Chan Dang-Vu was
not authorized and, therefore, not employer's responsibility.
Claimant did not seek review of that opinion before the full
commission and, therefore, it became final. Accordingly, the
commission did not err in finding that the deputy commissioner's
August 19, 1999 decision regarding those medical expenses is now
res judicata and may not be re-litigated.
IV. Reimbursement of Various Expenses
Claimant sought reimbursement of cash advances and
withdrawals from ATMs, the cost of gas and food, repairs to his
vehicle and office supplies. Although claimant presented
several statements reflecting these charges, no evidence
established that they constituted reasonable, necessary, and
causally related medical expenses as provided for under the Act.
Accordingly, we cannot find that claimant's evidence sustained
his burden of proving he was entitled to reimbursement for these
expenses.
V. Prescriptions and Sundries
In denying claimant's request for reimbursement of credit
card charges for "prescriptions and sundries," the commission
found as follows:
The claimant testified that these
charges were strictly for the filling of
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prescriptions. As noted by the Deputy
Commissioner, however, the claimant has
provided no information reflecting the
nature of the prescriptions filled, their
purpose, their relationship to the
compensable accident, nor which physician
prescribed them. Therefore, even if we
accept the claimant's testimony, the
Commission is unable to make the threshold
determination as to whether the medical
expenses are reasonable and necessary.
Taking into consideration the fact that the
claimant has sought, and apparently
continues to seek treatment with
unauthorized medical providers who issue
prescriptions for him, a more definitive
explanation of these charges is required
before the employer can be held responsible
for them.
In light of claimant's continued unauthorized medical care
and his inability to provide any explanation of the identity of
the medications or the physicians who prescribed them, we cannot
find as a matter of law that his evidence sustained his burden
of proving that these expenses constituted reasonable,
necessary, and causally related medical expenses under the Act.
For these reasons, we affirm the commission's decision.
Affirmed.
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Chap Van Ngo v. N & L Carpentry & Employers Ins.
Combined Opinion