COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
ROBERT RAPHAEL AMBROGI, JR.
MEMORANDUM OPINION*
v. Record No. 1360-99-4 PER CURIAM
NOVEMBER 23, 1999
MANPOWER, INC.
AND
CONTINENTAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert Raphael Ambrogi, Jr., pro se.)
(Heather K. Bardot; Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on brief),
for appellees.
Robert Raphael Ambrogi, Jr. (claimant) contends that the
Workers' Compensation Commission (commission) erred in denying
his application alleging a change-in-condition and seeking
reinstatement of compensation benefits. Specifically, claimant
contends that the commission erred in finding that (1) his
application was barred because he failed to cure his refusal of
selective employment within the six-month limitation period set
forth in Code § 65.2-510(C); and (2) the medical bills he
submitted, other than those from his treating physician, Dr.
Mary Beth Connell, were not employer's responsibility because
they were either for unauthorized treatment or for treatment
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
unrelated to claimant's compensable May 15, 1996 injury by
accident. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit. 1
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
I.
Code § 65.2-510(C) provides in pertinent part as follows:
A cure of unjustified refusal pursuant
to subsection A may not be established if
the unjustified refusal lasts more than six
months from the last day for which
compensation was paid before suspension
pursuant to this section . . . .
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).
So viewed, the evidence established that on May 30, 1997,
Deputy Commissioner Bruner ruled that claimant unjustifiably
refused selective employment as of August 15, 1996. Neither
party requested review of that opinion. Accordingly, it became
binding and conclusive upon them.
Claimant testified that since January 1998 he was employed
as a distributor for a company that sells vitamins and minerals.
Even "[a]ccepting that the claimant's employment as a
1
Because claimant did not include a list of the questions
presented for appeal in his brief, we have framed the issues to
include those addressed by the commission and arguably addressed
by claimant in the narrative portion of his brief.
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distributor [was] a cure of his earlier refusal of selective
employment," as the commission did, the evidence did not
establish that the cure occurred within six months of his
refusal on August 15, 1996. Accordingly, the commission did not
err in finding that Code § 65.2-510(C) applied to this case and
barred claimant's change-in-condition application for further
compensation benefits.
II.
"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 [sic] 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
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).
In denying claimant's request that employer be held
responsible for medical expenses, other than those which
claimant incurred with Dr. Connell, the commission found as
follows:
We note that the Commission's May 30, 1997
Opinion addressed the question of the
relationship between the claimant's
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industrial accident and his
temporomandibular joint problems and hearing
and speech problems. [That] opinion is
given res judicata effect in this
proceeding.
. . . When [that] Opinion . . . became
final on June 19, 1997, no further
litigation could occur on these issues.
All other bills, except those for Dr.
Connell's services, are clearly unrelated to
the claimant's May 15, 1996 industrial
accident. . . . There is no evidence in the
record to establish that the claimant
suffered injuries other than to his neck,
back, and left upper extremity injuries
[sic] in his May 15, 1996 accident.
In light of the applicability of the doctrine of res
judicata, the lack of any persuasive medical evidence of a
causal connection between the disputed medical bills and
claimant's compensable May 15, 1996 injuries, and the absence of
proper referrals from the treating physician, we cannot find as
a matter of law that the evidence was sufficient to sustain
claimant's burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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