COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Coleman 

Argued at Chesapeake, Virginia 

COLONIAL WILLIAMSBURG FOUNDATION 

 MEMORANDUM OPINION* BY 

v. Record No. 1388-02-1 JUDGE SAM W. COLEMAN III 

 DECEMBER 31, 2002 

WILLIAM K. BRADBY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Kathryn Spruill Lingle (Theisen & Lingle, 

P.C., on brief), for appellant. 

 Byron A. Adams for appellee. 

 Colonial Williamsburg Foundation (employer) appeals a 

decision of the Workers' Compensation Commission holding 

employer responsible for certain medical expenses incurred by 

William K. Bradby (claimant). Employer contends the commission 

erred in finding (1) claimant proved that medical treatments 

rendered by Dr. Patrick Harding, Dr. Robert Solomon, and by 

Williamsburg Community Hospital on April 14, 2000 were causally 

related to claimant's compensable December 2, 1999 injury by 

accident; and (2) Dr. Solomon was an authorized treating 

physician. Finding no error, we affirm the commission's 

decision. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
I. Causal Relationship of Medical Expenses

 "The actual determination of causation is a factual finding 

that will not be disturbed on appeal if there is credible 

evidence to support the finding." Ingersoll-Rand Co. v. Musick, 

7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). "Medical 

evidence is not necessarily conclusive, but is subject to the 

commission's consideration and weighing." Hungerford Mechanical 

Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 

(1991). 

 In holding employer responsible for medical treatments 

rendered by Drs. Harding and Solomon and by Williamsburg 

Community Hospital, the commission found as follows: 

Dr. Harding[, a neurologist,] examined 

claimant on several occasions and ordered 

numerous diagnostic tests in his attempt to 

discover the cause of the claimant's 

neurological deficits. Dr. Harding 

eventually ruled out that these deficits 

were caused by a stroke. However, he 

ultimately was unable to relate the 

claimant's condition to a particular cause, 

finding that they were consistent with both 

a closed head injury such as that suffered 

by the claimant in the original accident as 

well as non-accidental ischemic disease. 

 The employer contends that it is not 

responsible for the costs of care rendered 

by Dr. Harding because it is unrelated to 

the claimant's original accidental injury 

. . . . We disagree. At best, 

Dr. Harding's records reflect uncertainty 

regarding whether the claimant's neurologic 

problems were related to the December 1999 

accident. Subsequently, Dr. Solomon clearly 

diagnosed that the claimant's ataxia and 

associated symptoms are related to that 

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accident. The uncontroverted testimony of 

both the claimant and his wife was that the 

claimant did not suffer from any of these 

symptoms and neurologic deficits prior to 

the December 1999, accident. The employer 

produced no evidence to refute this 

testimony. None of the claimant's other 

treating physicians have been able to 

definitively rule out the accident as the 

cause of these symptoms and deficits. Thus 

we find that the preponderance of the 

evidence supports the claimant's contention 

that the care rendered by Dr. Harding is 

causally related to the compensable 

accident. 

 In his December 5, 2000 medical summary Dr. Solomon opined: 

"My conclusion is that [William Bradby] suffered a closed head 

injury with continued ataxia or unsteadiness of gait, cognitive 

deficits or memory problems, and he is unable to work." Later 

in his summary Dr. Solomon reiterated, "My impression as a 

result of his injury on December 2, 1999, resulting in closed 

head injury, he continues to have problems with balance, ataxia, 

slurred speech and cognitive and memory loss, and I feel this is 

a permanent disability." Dr. Solomon went on to state that in 

his opinion the MRI imaging of Mr. Bradby's brain revealed some 

isclemic white small vessel disease "but has not revealed any 

evidence of acute CVA, so I do not believe he has had a CVA 

causing his symptoms." 

 Thus, Dr. Solomon's medical records and opinions, coupled 

with the testimony of claimant and his wife, constitute credible 

evidence to support the commission's finding that claimant's 

neurologic symptoms were causally related to his compensable 

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December 2, 1999 injury by accident and not to a stroke. Based 

upon that credible evidence, the commission could conclude that 

the treatments rendered by Drs. Harding and Solomon and the 

treatment rendered by Williamsburg Community Hospital on April 

14, 2000 for claimant's neurologic symptoms were causally 

related to claimant's December 1999 injury by accident. 

Accordingly, we will not disturb the commission's finding that 

employer is responsible for the medical treatments rendered by 

Drs. Harding and Solomon and Williamsburg Community Hospital. 

II. Dr. Solomon

 In ruling that claimant was justified in selecting 

Dr. Solomon as a treating neurologist, the commission found as 

follows: 

[T]he primary treating physician, 

Dr. [Monique N.] Sessler, referred the 

claimant to Dr. Harding for consideration of 

the claimant's neurological complaints. 

Once the employer took the position that the 

treatment rendered by Dr. Harding was 

unrelated, it refused to pay for his 

treatment of the claimant. At that point, 

the claimant became free to select his own 

neurologist. He ultimately selected 

Dr. Solomon because Dr. Harding refused 

further treatment in light of the refusal of 

the employer to pay for his care of the 

claimant. The record does not substantiate 

the employer's contention that the claimant 

sought Dr. Solomon's care only because 

Dr. Harding would not relate the claimant's 

complaints to the original accident. 

Rather, at most Dr. Harding remained 

uncertain as to the causal connection, but 

he never definitively ruled out such a 

connection. 

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 "Where an employer initially denies that an injury is 

compensable, the employee is entitled to select a treating 

physician." Marriott Intern., Inc. v. Carter, 34 Va. App. 209, 

216, 539 S.E.2d 738, 741 (2001). The fact that the commission 

had previously directed claimant to chose a pain management 

specialist is not dispositive of whether Dr. Solomon's treatment 

for claimant's neurologic problems was compensable. After 

employer denied liability for Dr. Harding's treatment on the 

ground that claimant's neurologic problems were not causally 

related to his compensable injury by accident, claimant was free 

to select his own physician to treat those neurologic problems. 

Claimant chose Dr. Solomon, whose treatment, as stated above, 

was causally related to claimant's compensable injury by 

accident. Accordingly, the commission did not err in ruling 

that Dr. Solomon was an authorized treating physician. 

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

Affirmed. 

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