COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys 

Argued by teleconference 

BETTY B. COAL COMPANY, INC. AND 

 NATIONAL UNION FIRE INSURANCE 

 COMPANY OF PITTSBURGH 

 MEMORANDUM OPINION* BY 

v. Record No. 0614-01-3 JUDGE ROBERT J. HUMPHREYS 

 NOVEMBER 13, 2001 

JERRY RUSSELL DOTSON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 S. Vernon Priddy III (Sands, Anderson, 

Marks & Miller, on brief), for appellants. 

 D. Allison Mullins (Lee & Phipps, P.C., on 

brief), for appellee. 

 Betty B. Coal Company, Inc. and its insurer, National Union 

Fire Insurance Company of Pittsburgh ("employer"), appeal a 

decision of the Workers' Compensation Commission denying their 

application to terminate an ongoing award of temporary total 

disability benefits to Jerry Russell Dotson. For the reasons 

that follow, we affirm the decision of the commission. 

Because this decision has no precedential value, we recite 

only those facts pertinent to our holding. Dotson, a scoop 

operator for employer, was injured on September 17, 1998 when he 

 *

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

designated for publication. 
slipped and fell while cleaning debris out of the bucket of the 

scoop he had been operating. 

Following a medical examination performed by Dr. Kevin 

Blackwell, Dotson was diagnosed as suffering from a right elbow 

contusion, as well as right shoulder strain, and placed on 

restricted work status. 

Dotson continued to experience shoulder pain and received 

treatment for this problem through November of 1998. At that 

time, Dr. Blackwell referred Dotson to Dr. John M. Chandler, an 

orthopedist. 

On November 23, 1998, Dr. Chandler diagnosed Dotson with 

"cervical spondylosis, symptomatic with mild to moderate rotator 

cuff impingement, right worse than left." As to Dotson's 

shoulder injury, Dr. Chandler recommended, "[w]ith respect to 

the shoulder, [Dotson] simply needs to continue working on 

restricted duty." 

Dotson saw Dr. Chandler once again on January 14, 1999. He 

advised Dotson to undergo EMGs and nerve conduction studies, and 

referred him to "Dr. McConnell," a spine surgeon. He further 

recommended that Dotson continue to perform only light duty 

work. On June 3, 1999, in response to a letter of inquiry from 

employer's counsel, Dr. Chandler wrote: 

Received your letter of June 1, 1999. I can 

say with certainty that Mr. Dotson would 

have needed to be on light duty from the 

period I saw him January 14, 1999 until a 

period that he could see Dr. McConnell. 

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That appointment was made January 25, 1999 I 

believe. Beyond that I cannot make any 

inferences as to whether or not his work 

status would have changed. It is not 

appropriate for me to review records and try 

to make that determination. . . . 

 Dotson returned to Dr. Blackwell for treatment on October 

14, 1999. Dr. Blackwell indicated in his handwritten treatment 

notes that the visit was a "FU for Rt. Shoulder Strain." He 

noted "R. shoulder pain," but wrote "normal exam." Under the 

heading "Disposition," Dr. Blackwell indicated Dotson "[m]ay 

return to work without restrictions on 10/14/99." However, 

underneath this notation, Dr. Blackwell noted that an orthopedic 

referral was pending. 

On December 10, 1999, Dr. Chandler examined Dotson once 

again, and noted: 

My recommendation at this time would be to 

allow this man to rehabilitate his upper 

extremities. I do not think that the 

Cortisone injections in his shoulder are 

likely to relieve his pain except 

temporarily, and the risk of long term 

damage to the articular surface and 

otherwise normal shoulder is probably 

weighed against a more appropriate therapy 

which would be to place him in a therapy 

program. Certainly, we would be happy to 

review any records that needed to be 

reviewed, though from a pure orthopedic 

standpoint at this time, I believe that his 

persistent problems are probably related to 

his C6 radiculopathy and incomplete recovery 

of that. It is my opinion that a Cortisone 

injection would not appreciably improve his 

symptoms in the long term at this time. 

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Dotson filed his initial claim for temporary total 

disability benefits on December 11, 1998. Both Dotson and 

employer stipulated that his elbow and shoulder injuries were 

causally related to the accident. By opinion dated August 18, 

1999, the deputy commissioner awarded Dotson temporary total 

disability benefits for his right elbow and shoulder beginning 

January 29, 1999 and continuing. Employer sought a review by 

the full commission. The full commission affirmed the deputy's 

decision on May 5, 2000. See Jerry Russell Dotson v. Betty B 

Coal Co., Inc., VWC File No. 193-33-27 (May 5, 2000). 

During the pendency of the above proceedings, employer 

filed a separate application for hearing on December 1, 1999, 

requesting termination of Dotson's award of temporary total 

disability benefits. Specifically, employer alleged in its 

application that Dotson "was released to return to pre-injury 

work on October 14, 1999 per Dr. Blackwell's report dated 

October 14, 1999." Employer attached Dr. Blackwell's 

handwritten treatment notes from October 14, 1999 to its 

application for hearing. 

The deputy commissioner decided the application on the 

record, finding that employer failed to raise the issue of 

whether any disability still remaining was unrelated to the 

compensable injury and that employer failed to establish that 

Dotson was capable of returning to his pre-injury work as there 

was no evidence that Dr. Chandler, Dotson's orthopedist, lifted 

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Dotson's work restrictions. The full commission affirmed, with 

one dissent. On appeal, employer relies on Dr. Blackwell's 

October 14, 1999 handwritten treatment notes in contending that 

the commission erred in finding it failed to establish that 

Dotson was released to return to pre-injury work. 

 Guided by well established principles, 

we construe the evidence in the light most 

favorable to the party prevailing below, 

claimant in this instance. "If there is 

evidence, or reasonable inferences can be 

drawn from the evidence, to support the 

Commission's findings, they will not be 

disturbed on review, even though there is 

evidence in the record to support a contrary 

finding." 

Russell Stover Candies v. Alexander, 30 Va. App. 812, 825, 520 

S.E.2d 404, 411 (1999) (quoting Morris v. Badger Powhatan/Figgie 

Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986)). 

 Consequently, where the commission 

resolves [a] conflict in medical testimony, 

on appeal the medical issue will not be 

"settled by judicial fiat," and the 

commission's decision is binding so long as 

it is supported by credible evidence. When, 

however, there is no conflict in the 

evidence or where there is no credible 

evidence to support the commission's factual 

findings, the question is the sufficiency of 

the evidence, which is a question of law. 

Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872, 

874 (1992) (quoting Johnson v. Capitol Hotel, 189 Va. 585, 590, 

54 S.E.2d 106, 109 (1949)). 

 Employer contends that here, the evidence is "undisputed." 

Thus, employer argues that the question is one of sufficiency of 

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the evidence, a question of law suitable for our review on 

appeal. We disagree. 

 First, employer misstates the standard of review. It is 

not a question of whether the evidence is "in dispute." 

Instead, the issue on review is whether there is a "conflict in 

the evidence" itself. See id. If no such conflict exists, the 

question becomes one of sufficiency, a question of law to be 

determined by this Court on appeal. 

 In the present case there is a distinct conflict between 

the medical opinion of Dr. Chandler, as opposed to that of Dr. 

Blackwell. Thus, the issue is a question of fact, not an issue 

of law. See Russell Stover Candies, 30 Va. App. at 826, 520 

S.E.2d at 411 ("'[a] question raised by conflicting medical 

opinion is a question of fact'" (quoting Commonwealth v. Powell, 

2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986))). 

 "It is firmly established that a finding by the 

[c]ommission as to questions of fact, if supported by credible 

evidence, is conclusive and binding upon us. Moreover, this 

rule also applies to facts found from conflicting expert 

opinions." Chandler v. Schmidt Baking Co., 228 Va. 265, 267-68, 

321 S.E.2d 296, 297 (1984). 

 Here, the credible evidence demonstrated that Dr. Blackwell 

first placed Dotson on work restrictions on September 21, 1998. 

On November 23, 1998, Dr. Chandler agreed with the 

recommendation of restrictions to light duty. Although 

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Dr. Blackwell lifted the work restrictions he had placed on 

Dotson on October 14, 1999, the commission found it relevant 

that he noted in doing so that an orthopedic referral was still 

pending. On December 10, 1999, when Dotson saw Dr. Chandler, 

his orthopedist, Dr. Chandler advised him to continue physical 

therapy for his shoulder. Further, Dr. Chandler did not lift 

the work restrictions he had imposed during both the prior year 

and in early 1999. Thus, the commission resolved this conflict 

in the physicians' opinions in Dotson's favor, as it had the 

right to do. 

 Although employer correctly points out that in response to 

its inquiry, Dr. Chandler stated on June 3, 1999 that he could 

not assert an opinion at that time as to Dotson's ability to 

return to pre-injury work, employer neglects to recognize that 

Dr. Chandler made this statement in reference to its request 

that he make this determination based upon a mere review of 

Dotson's medical records. Dr. Chandler declined to opine as to 

Dotson's status based upon the records alone. However, when he 

physically examined and treated Dotson on December 10, 1999, he 

made no attempt to remove the restrictions he had imposed 

several months earlier. Thus, we find that the credible 

evidence supports the commission's finding of fact in this 

regard. 

 We do not address employer's argument, suggested in a 

footnote in its brief, that the commission erred in finding 

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employer had failed to properly raise the question of whether 

Dotson's continued inability to work related only to his neck 

injury. Employer raised this argument only by stating that it 

reserved the right to assert the argument "should Dotson argue 

that the Full Commission also agreed with the deputy 

commissioner's" finding in this regard. Dotson raised no such 

argument. Therefore, we find that the issue is not properly 

before this Court for our consideration. 

Accordingly, we affirm the decision of the commission. 

 Affirmed. 

 

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