                    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



                              - 4 -
     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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