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MIKA v SEARS, ROEBUCK & COMPANY


MIKA

v.

SEARS, ROEBUCK &
COMPANY AND
ALLSTATE INSURANCE COMPANY

(unpublished)


FEBRUARY 18, 1997
Record No. 0540-96-2

JAMES MIKA

v.

SEARS, ROEBUCK & COMPANY AND
ALLSTATE INSURANCE COMPANY

Present: Judges Baker, Elder and Fitzpatrick

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(John H. Maclin, IV, on brief), for appellant.

(Cecil H. Creasey, Jr.; Mark M. Caldwell; Sands, Anderson, Marks
& Miller, on brief), for appellees.


James Mika (claimant) contends that the Workers’ Compensation
Commission (commission) erred in finding that (1) Sears, Roebuck
& Company (employer) was not responsible for the cost of Dr.
Milton Ende’s medical treatment rendered to claimant between
November 14, 1988 and January 10, 1995 or for claimant’s mileage
to and from such treatments, (2) Dr. G. W. Chirkinian’s medical
treatment was not causally related to claimant’s compensable
August 28, 1987 industrial injury, and (3) a CT scan and x?rays
performed at Johnston Willis Hospital on October 5, 1994 were not
causally related to claimant’s compensable industrial injury.[2] 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. Rule 5A:27.

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. Tomko v. Michael’s Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).

I.

Code ? 65.2?604 requires that a physician who treats an
injured employee file medical records upon request of the injured
employee, the employer, or the insurer. Claimant bore the burden
of proving that Dr. Ende’s medical treatment was reasonable,
necessary, and causally related to his industrial injury. Neither
Dr. Ende nor claimant produced any medical records related to Dr.
Ende’s treatment of claimant between November 14, 1988 and
January 10, 1995, from which it could be determined that such
treatment was reasonable, necessary, and causally related to
claimant’s industrial injury. Therefore, we cannot say as a
matter of law that claimant’s evidence sustained his burden of
proof. Accordingly, the commission did not err in refusing to
hold employer responsible for the cost of such treatment or for
mileage related to claimant’s travel to and from Dr. Ende’s
office during this time period.

II.

On a prescription form dated February 9, 1993, Dr. Ende
referred claimant to Dr. G. W. Chirkinian, a chiropractor, for
three visits for treatment of wrist and hand pain. No evidence
established that Dr. Chirkinian’s treatment was causally related
to claimant’s industrial injury. Moreover, the commission, in its
role as fact finder, was entitled to reject the handwritten
notation "lumbar trouble" on the referral form, finding
that the form apparently had been altered. It is well settled
that credibility determinations are within the fact finder’s
exclusive purview. Goodyear Tire & Rubber Co. v. Pierce,
5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).

Based upon the lack of any persuasive evidence to prove that
Dr. Chirkinian’s treatment was causally related to claimant’s
industrial injury, we cannot say as a matter of law that
claimant’s evidence sustained his burden of proof. Therefore, the
commission did not err in refusing to hold employer responsible
for the cost of Dr. Chirkinian’s treatment.

III.

Dr. Ende referred claimant for lumbosacral spine x?rays and a
CT scan on an unsigned prescription pad note dated October 4,
1994. No evidence established that the CT scan and x?rays were
causally related to claimant’s industrial injury. Accordingly, we
cannot say as a matter of law that claimant’s evidence sustained
his burden of proof. Therefore, the commission did not err in
refusing to hold employer responsible for the cost of the CT scan
and x?rays.

For the reasons stated, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010
this opinion is not designated for publication.

[2]Claimant
also contends that the commission should have held employer
responsible for a $125 medical bill submitted by Dr. Jatinder K.
Sidhu. Employer stated in its brief that it accepted
responsibility for Dr. Sidhu’s bill at the hearing, and that it
paid the bill after the hearing on January 10, 1996. On February
21, 1996, employer also paid claimant directly the amount of $54
for the cost of x-rays performed on November 14, 1988 at the
direction of Dr. Sidhu. Accordingly, the issue of employer’s
liability for these medical bills is moot and, therefore, will
not be addressed on appeal.

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