COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, McCl anahan 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. (Will iams, 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 fo r the cost of total knee replacement surgery. Claimant contends th e evidence was not sufficient to support the commission’s denial of his cl aim. We disagree, and affi rm the commission’s decision. On appeal, we view the evidence in the lig ht 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 Ma y 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 opin ion is not designated for publication.-2- On June 4, 2002 claimant came under the care of Dr. Stuart J. Kr amer. Dr. Kramer remains claimant’s authorized treating physicia n. 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 ar throscopic knee surgery. After that surgery, Dr. Kramer prescribed medication and physic al therapy. On August 20, 2002, Dr. Kramer released claimant to regular duty. Dr. Kramer’s medical records show that cl aimant 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. Kram er 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 surger y 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 th at 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. Claima nt, who was fifty-eight years old at the time of the Febr uary 1, 2005 hearing, stated that he is not planning to retire for at least five years but would like th e operation before he retires. Based upon this record, the commission found th at claimant had not presented evidence, other than his stated desire to have the su rgery 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.-3- The employer’s responsibility for medical expenses under Code § 65.2-603 depends upon “(1) whether the medical service was causally rela ted to the industrial in jury; (2) whether such other medical attention was necessary ; and (3) whether the treating physician ma de 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 th e evidence being insu fficient to support the commission’s finding. He is correct in the he aring before the commission that he bore the burden of proof on these issues by a prepondera nce 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 ev idence established as a matter of law that knee replacement surgery was necessary at the ti me of the hearing before the commission, the commission’s findings are bindi ng 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 medi cal opinion that it was reasonabl e and necessary for claimant to undergo a total knee replacement at the time he f iled his claim or at the time of the hearing on his claim. Absent medical evidence that the surg ery was reasonable and necessary at that time, coupled with claimant’s testimony that Dr. Kram er did not want to perform the surgery until claimant stopped working as a cr ane 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 ca usation issue raised by

1 In rendering our decision, we did not cons ider any evidence th at was not properly before the commission when it rendered its decision.-4- claimant. We also note that the causation issue was raised for the first time in employer’s written statement before the commission, and the commissi on did not consider that issue in its opinion. For these reasons, we affi rm the commission’s decision. Affirmed.