                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bumgardner and Lemons


ROBERT RAPHAEL AMBROGI, JR.
                                             MEMORANDUM OPINION*
v.   Record No. 1360-99-4                         PER CURIAM
                                              NOVEMBER 23, 1999
MANPOWER, INC.
AND
CONTINENTAL CASUALTY COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Robert Raphael Ambrogi, Jr., pro se.)

             (Heather K. Bardot; Trichilo, Bancroft,
             McGavin, Horvath & Judkins, P.C., on brief),
             for appellees.


     Robert Raphael Ambrogi, Jr. (claimant) contends that the

Workers' Compensation Commission (commission) erred in denying

his application alleging a change-in-condition and seeking

reinstatement of compensation benefits.     Specifically, claimant

contends that the commission erred in finding that (1) his

application was barred because he failed to cure his refusal of

selective employment within the six-month limitation period set

forth in Code § 65.2-510(C); and (2) the medical bills he

submitted, other than those from his treating physician, Dr.

Mary Beth Connell, were not employer's responsibility because

they were either for unauthorized treatment or for treatment


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
unrelated to claimant's compensable May 15, 1996 injury by

accident.   Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit. 1

Accordingly, we summarily affirm the commission's decision.       See

Rule 5A:27.

                                  I.

     Code § 65.2-510(C) provides in pertinent part as follows:

                 A cure of unjustified refusal pursuant
            to subsection A may not be established if
            the unjustified refusal lasts more than six
            months from the last day for which
            compensation was paid before suspension
            pursuant to this section . . . .

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.    See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

     So viewed, the evidence established that on May 30, 1997,

Deputy Commissioner Bruner ruled that claimant unjustifiably

refused selective employment as of August 15, 1996.   Neither

party requested review of that opinion.   Accordingly, it became

binding and conclusive upon them.

     Claimant testified that since January 1998 he was employed

as a distributor for a company that sells vitamins and minerals.

Even "[a]ccepting that the claimant's employment as a


     1
       Because claimant did not include a list of the questions
presented for appeal in his brief, we have framed the issues to
include those addressed by the commission and arguably addressed
by claimant in the narrative portion of his brief.

                                 - 2 -
distributor [was] a cure of his earlier refusal of selective

employment," as the commission did, the evidence did not

establish that the cure occurred within six months of his

refusal on August 15, 1996.   Accordingly, the commission did not

err in finding that Code § 65.2-510(C) applied to this case and

barred claimant's change-in-condition application for further

compensation benefits.

                                II.

     "Whether the employer is responsible for medical expenses

. . . 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 to [sic] the patient."     Volvo

White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903,

906 (1985).   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).

     In denying claimant's request that employer be held

responsible for medical expenses, other than those which

claimant incurred with Dr. Connell, the commission found as

follows:

           We note that the Commission's May 30, 1997
           Opinion addressed the question of the
           relationship between the claimant's
                               - 3 -
          industrial accident and his
          temporomandibular joint problems and hearing
          and speech problems. [That] opinion is
          given res judicata effect in this
          proceeding.

               . . . When [that] Opinion . . . became
          final on June 19, 1997, no further
          litigation could occur on these issues.

               All other bills, except those for Dr.
          Connell's services, are clearly unrelated to
          the claimant's May 15, 1996 industrial
          accident. . . . There is no evidence in the
          record to establish that the claimant
          suffered injuries other than to his neck,
          back, and left upper extremity injuries
          [sic] in his May 15, 1996 accident.

     In light of the applicability of the doctrine of res

judicata, the lack of any persuasive medical evidence of a

causal connection between the disputed medical bills and

claimant's compensable May 15, 1996 injuries, and the absence of

proper referrals from the treating physician, we cannot find as

a matter of law that the evidence was sufficient to sustain

claimant's burden of proof.

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

                                                           Affirmed.




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