COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

DICKENSON COUNTY MEDICAL CENTER 

AND 

FIDELITY & CASUALTY INSURANCE COMPANY 

v. Record No. 0570-95-3 MEMORANDUM OPINION*

 PER CURIAM 

JANIE M. BELLER SEPTEMBER 19, 1995 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Paul C. Kuhnel; Woods, Rogers & Hazlegrove, on 

brief), for appellants. 

 (Daniel Sachs, on brief), for appellee. 

 Dickenson County Medical Center and its insurer (hereinafter 

collectively referred to as "employer") contend that the Workers' 

Compensation Commission erred in finding that Janie M. Beller 

(1) proved that her back condition was causally related to her 

compensable March 21, 1994, injury by accident; (2) was entitled 

to temporary total disability benefits after May 29, 1994; and 

(3) adequately marketed her residual work capacity after 

May 29, 1994. Upon reviewing the record and the briefs of the 

parties, we conclude that this appeal is without merit. 

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

5A:27. 

I. and II. Disability

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

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

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

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "[I]t 

is fundamental that a finding of fact made by the Commission is 

conclusive and binding upon this court on review. A question 

raised by conflicting medical opinion is a question of fact." 

Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 

(1986). 

 The parties stipulated that Beller sustained a compensable 

neck and shoulder injury on March 21, 1994. The deputy 

commissioner found that Beller failed to prove that her alleged 

back condition was causally related to the March 21, 1994, injury 

by accident. The full commission based its finding of postMay 31, 1994, partial disability upon Dr. Vanover's objective 

findings documenting Beller's continuing neck and shoulder pain 

and spasms. In awarding compensation benefits to Beller, the 

commission found the following: 

 [W]e find that [Beller] continued to be 

partially disabled after May 31, 1994. 

Although Dr. [Mary C.] Luther released 

[Beller] to work, Dr. [Patricia H.] Vanover 

continued to document objective findings 

which establish that [Beller] cannot engage 

in the heavy lifting requirements of her job. 

 Even Dr. [Matthew W.] Wood, who saw [Beller] 

on one occasion, suggested work hardening if 

[she] is unable to work. 

 The evidence proved that Dr. Vanover saw Beller on 

April 8, 1994, and May 12, 1994, at which time she diagnosed 

acute cervical strain and acute L-S strain. Dr. Vanover 

attributed Beller's neck and shoulder pain to her compensable 
 3 

March 21, 1994, injury by accident. On June 16, 1994, Dr. 

Vanover released Beller to light duty, but stated that Beller 

could not return to her regular job requiring heavy lifting. In 

June 1994, Dr. Vanover continued to document objective findings 

of neck and shoulder pain and spasms. On June 27, 1994, Dr. 

Vanover reiterated her opinion that Beller was fit for light duty 

work, such as clerical work, but that she could not perform her 

regular duties. 

 In its role as fact finder, the commission was entitled to 

accept Dr. Vanover's opinion and to reject the contrary opinion 

of Dr. Luther. "Questions raised by conflicting medical opinions 

must be decided by the commission." Penley v. Island Creek Coal 

Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). "The fact 

that there is conflicting evidence in the record is of no 

consequence if there is credible evidence to support the 

commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va. 

App. 890, 894, 407 S.E.2d 32, 35 (1991). The medical records and 

opinions of Dr. Vanover constitute credible evidence to support 

the commission's finding that Beller remained partially disabled 

after May 31, 1994. 

 III. Marketing 

 The commission also found that Beller adequately marketed 

her residual work capacity after May 31, 1994. "What constitutes 

a reasonable marketing effort depends upon the facts and 

circumstances of each case." The Grief Companies v. Sipe, 16 Va. 
 4 

App. 709, 715, 434 S.E.2d 314, 318 (1993). 

 Beller testified that as soon as she was released to work by 

Dr. Luther, she returned to employer asking that she be allowed 

to work. Employer refused to allow Beller to work in her regular 

job because it did not believe she was physically able to care 

for patients. Thereafter, Beller immediately sought employment 

from numerous stores in Haysi. Beller's testimony provides 

sufficient credible evidence to support the commission's finding 

that she adequately marketed her residual work capacity. 

 For these reasons, we find that the commission did not err 

in awarding temporary total disability benefits to Beller 

beginning March 21, 1994, and continuing. Accordingly, we affirm 

the commission's decision. 

Affirmed.