Payne v. Master Roofing and Siding, Inc.

• Decision Date: 04 February 1986
• Docket Number: No. 0313-85,0313-85
• Parties: James R. PAYNE v. MASTER ROOFING AND SIDING, INC., and Bituminous Fire and Marine Insurance Company. Record
• Court: Virginia Court of Appeals

Page 559

339 S.E.2d 559

1 Va.App. 413

James R. PAYNE v. MASTER ROOFING AND SIDING, INC. and Bituminous Fire and Marine Insurance Company.

Record No. 0313-85.

Court of Appeals of Virginia.

Argued Oct. 11, 1985.

Decided Feb. 4, 1986.

Peter M. Sweeny (Ashcraft & Gerel, Alexandria, on brief), for appellant.

Elizabeth M. Parrish (Sands, Anderson, Marks & Miller, Richmond, on brief), for appellee.

Present: DUFF, MOON and COLE, JJ.

MOON, Judge.

James R. Payne seeks reversal of a decision by the Industrial Commission which denied him payment for emergency room treatment and subsequent care upon the grounds that no emergency existed when he entered the hospital. We reverse with instructions because the uncontradicted evidence shows that an emergency existed.

Code § 65.1-88 provides for treatment by an unauthorized physician in an "emergency" or "for other good reasons." Generally, the Commission's findings of fact are conclusive and binding on appeal, Code § 65.1-98, but where there is "no conflict in the evidence, the question of the sufficiency thereof is one of law." City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965). This rule applies even when the uncontradicted evidence is the testimony of an interested party, so long as it "is not inherently incredible and not inconsistent with facts in the record." Cheatham v. Gregory, 227 Va. 1, 4, 313 S.E.2d 368, 370 (1984).

James R. Payne fell from a roof on April 1, 1984, and was treated by Dr. Antoun, Dr. Russo, and Dr. Bortnick. On June 6, 1984, Payne was examined again by Dr. Antoun, at which time the doctor told Payne to return to light work beginning June 16, 1984. Payne's wife and Payne both testified that he continued to be in pain for two days after his last visit to Dr. Antoun and that his pain had increased. Payne's wife testified that on the day of his admission to the emergency room, June 11, 1984, she had called Dr. Antoun's office repeatedly, just as she had done for several days preceding the admission. She could not reach Dr. Antoun and he did not return her calls. Dr. Antoun stated that she may have called his office, but that he had no record of any calls. Mrs. Payne finally took her husband to the emergency room at the National Orthopedic & Rehabilitation Hospital where he was admitted by Dr. Sawmiller. Dr. Sawmiller's letters and the hospital's records do not reflect that any life threatening emergency existed, but they note that Payne suffered from a lumbosacral strain (ruling out a disk protrusion), "severe anxiety," and probable cervical arthritis.

A claimant has the burden of proving that an actual emergency exists. This burden is implicit from reading Code § 65.1-88 and has been the Commission's long standing interpretation. See Byers v. Miller & Rhoads, Inc., 37 O.I.C. 53 (1955).

In the present case, we agree with the Commission's finding that there was no life threatening emergency confronting Payne. However, we further believe...