COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, McClanahan and Senior Judge Coleman 

Argued at Salem, Virginia 

LORNE A. MILETTE 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2670-05-3 JUDGE SAM W. COLEMAN III 

 JUNE 6, 2006 

HAYMES BROTHERS, INC. AND 

 HARTFORD FIRE INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 Robert L. Morrison, Jr. (Williams, Morrison, Light & Moreau, on 

brief), for appellant. 

 Richard D. Lucas (Lucas Law Firm, PLC, on brief), for appellees. 

 Lorne A. Milette (claimant) appeals a decision of the Workers’ Compensation 

Commission denying his August 10, 2004 Claim for Benefits seeking to hold Haymes Brothers, 

Inc. and its insurer (hereinafter referred to as “employer”) responsible for the cost of total knee 

replacement surgery. Claimant contends the evidence was not sufficient to support the 

commission’s denial of his claim. We disagree, and affirm the commission’s decision. 

 On appeal, we view the evidence in the light most favorable to the prevailing party. 

R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 Claimant sustained a knee injury on May 30, 2002, while working for employer as a 

crane operator. Employer accepted the claim as compensable, and claimant received temporary 

total disability benefits under an award until August 26, 2002, when he returned to work. 

Claimant now works as a crane operator for a different employer. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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 On June 4, 2002 claimant came under the care of Dr. Stuart J. Kramer. Dr. Kramer 

remains claimant’s authorized treating physician. An MRI ordered by Dr. Kramer showed 

significant degenerative changes and degenerative tears of the meniscus in the injured left knee. 

On July 5, 2002, Dr. Kramer performed outpatient arthroscopic knee surgery. After that surgery, 

Dr. Kramer prescribed medication and physical therapy. On August 20, 2002, Dr. Kramer 

released claimant to regular duty. 

 Dr. Kramer’s medical records show that claimant continues to experience knee pain. 

Dr. Kramer made several references to claimant needing “further intervention” at some point. 

On August 14, 2003, Dr. Kramer discussed with claimant “further intervention with the 

possibility of a knee replacement,” but noted that “[a]t the present time [claimant] wants to hold 

off on this.” On November 18, 2003, Dr. Kramer noted he thought claimant “is going to 

eventually come to a knee replacement and we have again talked about this.” Dr. Kramer’s notes 

dated February 9, 2004 indicate that claimant did not want the surgery at that time. On July 1, 

2004, Dr. Kramer noted that he and claimant again talked about the risks and potential 

complications of the surgery. Dr. Kramer noted that the claimant wanted to talk to the carrier 

and then would “let me know.” 

 Claimant testified that Dr. Kramer did not want to perform the total knee replacement 

surgery while claimant was still working as a crane operator. Claimant, who was fifty-eight 

years old at the time of the February 1, 2005 hearing, stated that he is not planning to retire for at 

least five years but would like the operation before he retires. 

 Based upon this record, the commission found that claimant had not presented evidence, 

other than his stated desire to have the surgery now, that would permit the commission to 

override the medical advice of the treating physician which was that claimant would 

“eventually” need a knee replacement. 
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 The employer’s responsibility for medical expenses under Code § 65.2-603 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 of 

the patient.” Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 

(1985) (emphasis added); Code § 65.2-603. Claimant focuses on an incorrect standard of review 

when he couches the issue in terms of the evidence being insufficient to support the 

commission’s finding. He is correct in the hearing before the commission that he bore the 

burden of proof on these issues by a preponderance of the evidence, not employer. See

McGregor v. Crystal Food Corp., 1 Va. App. 507, 508, 339 S.E.2d 917, 918 (1986). However, 

on appeal, unless we can say that claimant’s evidence established as a matter of law that knee 

replacement surgery was necessary at the time of the hearing before the commission, 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). 

 The record contains no medical opinion that it was reasonable and necessary for claimant 

to undergo a total knee replacement at the time he filed his claim or at the time of the hearing on 

his claim. Absent medical evidence that the surgery was reasonable and necessary at that time, 

coupled with claimant’s testimony that Dr. Kramer did not want to perform the surgery until 

claimant stopped working as a crane operator, we cannot find that claimant as a matter of law 

proved the surgery was reasonable and necessary at that time.1 Therefore, the commission’s 

findings are binding and conclusive upon us. 

 Because we find no merit with respect to claimant’s argument regarding the 

reasonableness and necessity of the surgery, we need not address the causation issue raised by 

 1

 In rendering our decision, we did not consider any evidence that was not properly 

before the commission when it rendered its decision. 
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claimant. We also note that the causation issue was raised for the first time in employer’s written 

statement before the commission, and the commission did not consider that issue in its opinion. 

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

Affirmed.