Larry R. Beard v. City of Danville Pub. Works, etal ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Overton
Argued at Salem, Virginia
LARRY R. BEARD
v. Record No. 1261-95-3 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
CITY OF DANVILLE PUBLIC WORKS, APRIL 30, 1996
DANVILLE REGIONAL MEDICAL CENTER,
DANVILLE ORTHOPEDIC CLINIC, INC. and
DANVILLE SURGICAL NEUROLOGY, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James B. Feinman (Esther S. McGuinn; James B.
Feinman & Associates, on briefs), for
appellant.
No brief for appellee City of Danville Public
Works.
R. Lee Yancey (Kevin S. Weekly; Clement &
Wheatley, on brief), for appellee Danville
Regional Medical Center.
Robert L. Morrison, Jr. (Williams, Stilwell,
Morrison, Williams & Light, on brief), for
appellees Danville Orthopedic Clinic, Inc.
and Danville Surgical Neurology, Inc.
On appeal from a decision of the Virginia Workers'
Compensation Commission denying an award of attorney's fees
pursuant to Code § 65.2-714, Larry R. Beard contends that the
commission erred in finding that an award of attorney's fees was
not authorized. We find no error and affirm the decision of the
commission.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. Crisp v. Brown's Tysons Corner
Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
The findings of the commission, if based on credible evidence,
are conclusive and binding on this Court. Morris v. Badger
Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876,
877 (1986).
On October 7, 1992, Beard suffered a back injury arising out
of and in the course of his employment with the City of Danville
Public Works (City of Danville). Pursuant to a memorandum of
agreement, the commission entered an award of benefits beginning
October 19, 1992, with medical benefits continuing for as long as
necessary.
By letter dated September 10, 1993, James B. Feinman
notified the employer's workers' compensation carrier,
Consolidated Risk Management Services (CRMS), that he represented
Beard.
In September, 1993, Dr. Lawrence Cohen, Beard's attending
orthopedic surgeon, recommended surgery for his recurrent
herniated disc. At Dr. Cohen's request, a second opinion was
obtained from Dr. Joel Singer, a neurosurgeon. Dr. Singer agreed
with Dr. Cohen's recommendation and proposed to assist in the
surgery. The surgery was pre-approved by CRMS and this pre-
approval was communicated to Dr. Singer on October 7, 1993, and
to Dr. Cohen on November 2, 1993.
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CRMS scheduled an independent medical examination for Beard
with Dr. Derian at Duke University Medical Center on October 21,
1993. The purpose of this examination was to confirm the
diagnoses of Dr. Cohen and Dr. Singer and the necessity for the
scheduled surgery. Beard did not keep this appointment. Neither
he nor Mr. Feinman notified either Dr. Derian or CRMS in advance
that he would not appear.
On November 4, 1993, Dr. Cohen and Dr. Singer performed the
scheduled surgery. On December 1, 1993, CRMS applied for a
hearing before the commission, seeking to suspend Beard's weekly
benefits due to his failure to attend the independent medical
exam. CRMS sought medical authorization and records from Beard
in order that it might submit these to Dr. Derian to confirm
Beard's earlier diagnoses. Mr. Feinman rejected this request,
informing CRMS that it would be required to use legal process to
obtain the desired information.
The deputy commissioner conducted a hearing on March 15,
1994. Because CRMS had received the requested medical
information only a week before the hearing, the record was left
open so that Dr. Derian might review this information. After Dr.
Derian had reviewed Beard's medical records, he advised the City
of Danville that the surgery was reasonable and necessary. On
April 5, 1994, the City of Danville withdrew its application to
terminate Beard's benefits.
At the March 15, 1994 hearing, Mr. Feinman moved for
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attorney's fees pursuant to Code § 65.2-714(B). On October 24,
1994, the deputy commissioner denied the motion finding that Code
§ 65.2-714(B) applies only to "contested claims" and that Beard's
claim had been accepted as compensable from its inception.
On review, the full commission affirmed the deputy
commissioner's decision, finding that the claim was not disputed
and that the health care providers had not benefited from Mr.
Feinman's involvement because CRMS had pre-approved the surgery.
Mr. Feinman moved for reconsideration. On April 11, 1995, the
commission again affirmed the deputy commissioner's decision,
finding that although the medical bills were contested, they were
not determined by the commission to be reasonable and necessary,
as required by Code § 65.2-714.
Mr. Feinman filed a second motion for reconsideration. The
commission denied the motion, holding that Code § 65.2-714
requires attorney's fees when benefits for medical services are
awarded after a hearing on the claim or after abandonment of a
defense, but that the medical bills in this case were not
approved as a result of dispute and litigation and were not
before the commission on an initial disputed claim. The
commission also found that CRMS had not abandoned a defense
because it had not contested payment.
The commission did not err in holding that Mr. Feinman was
not entitled to attorney's fees under Code § 65.2-714.
Virginia Code Ann. § 65.2-714 (B) provides:
If a contested claim is held to be compensable under
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this title and, after a hearing on the claim on its
merits or after abandonment of a defense by the
employer or insurance carrier, benefits for medical
services are awarded and inure to the benefit of a
third party . . . health care provider, the Commission
shall award to the employee's attorney a reasonable fee
and other reasonable pro rata costs as are appropriate
from the sum which benefits the thirty party . . .
health care provider.
Credible evidence in the record establishes the following:
The claim was accepted by CRMS as compensable from its inception.
Neither the City of Danville nor CRMS asserted or abandoned a
defense. They sought only clarifying information, which Beard
and Mr. Feinman denied. The health care providers gained no
benefit from Mr. Feinman's involvement in the matter.
The decision of the commission is affirmed.
Affirmed.
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