COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

MICHAEL A. FOTI 

 MEMORANDUM OPINION*

v. Record No. 0882-97-4 PER CURIAM 

 JULY 29, 1997 

ARLINGTON COUNTY 

 FROM THE VIRGINIA 

WORKERS' COMPENSATION COMMISSION 

 (Michael A. Foti, pro se, on briefs). 

 (Lisa C. Healey; Siciliano, Ellis, Dyer & 

Boccarosse, on brief), for appellee. 

 Michael A. Foti (claimant) contends that the Workers' 

Compensation Commission (commission) erred in refusing to award 

him reimbursement for (1) miles he travelled to medical visits 

prior to 1986; (2) attorneys' fees, expert witnesses' fees and 

transcript costs incurred with respect to a 1991 hearing; 

(3) attorneys' fees incurred in securing a Memorandum of 

Agreement in 1983; (4) the cost of a Balan's chair; and (5) the 

cost of Dr. Lucy White Ferguson's chiropractic treatment. 

Claimant also requests an award for cost-of-living adjustments. 

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. See R.G. Moore Bldg. Corp. v. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

Mullins, 10 Va. App. 211, 212, 390 S.E. 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). 

Mileage Reimbursement

 Claimant requested mileage reimbursement for using his 

personal vehicle during 1983 to travel from Arlington to 

Alexandria, Virginia for orthopedic treatment. He also requested 

reimbursement for expenses incurred in travelling from his home 

in Seabrook, Maryland to Leeland Memorial Hospital for physical 

therapy through September, 1983. 

 Because claimant did not provide evidence of the number of 

miles travelled or the specific dates of the travel, we cannot 

find as a matter of law that claimant's evidence sustained his 

burden of proof. 

Attorneys' Fees, Expert Witnesses' Fees, and Transcript Costs

 Claimant's requests for attorneys' fees, expert witnesses' 

fees and transcript costs incurred in 1983 and 1991 were not 

timely. Moreover, nothing in the Workers' Compensation Act 

supports an award of these expenses under the circumstances of 

this case. 

Balan's Chair

 "Whether the employer is responsible for medical expenses 

. . . depends upon: (1) whether the medical service was causally 
 3 

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). 

 Claimant purchased the Balan's chair on his own initiative. 

 He presented no evidence that the purchase of the chair was 

medically necessary or causally related to his compensable injury 

by accident. Accordingly, we cannot find as a matter of law that 

claimant's evidence sustained his burden of proof. 

Dr. Ferguson's Treatment

 Claimant testified that a friend referred him to Dr. 

Ferguson in 1983 for chiropractic treatment. Claimant admitted 

that his treating physician, Dr. Henry Danaceau, did not refer 

him to Dr. Ferguson. Claimant also admitted that he received a 

letter from his employer denying authorization for Dr. Ferguson's 

treatment. Absent a proper referral by claimant's treating 

physician for him to seek treatment from Dr. Ferguson, we cannot 

find as a matter of law that claimant's evidence sustained his 

burden of proving employer responsible for the cost of Dr. 

Ferguson's treatment. See Shenandoah Prods., Inc. v. Whitlock, 

15 Va. App. 207, 210-11, 421 S.E.2d 483, 485 (1992). 

Cost-of-Living Adjustments

 Claimant did not make clear in his briefs the error he 

alleges that the commission made in rendering its award of 

cost-of-living adjustments. In any event, our review of the 
 4 

record does not reveal any error with respect to this portion of 

the commission's decision. Accordingly, it will not be disturbed 

on appeal. 

 For these reasons, we affirm the commission's decision. 

 Affirmed.