COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and McClanahan 

Argued at Salem, Virginia 

JAMES NATHAN WALKER 

 MEMORANDUM OPINION* BY 

v. Record No. 3391-02-3 JUDGE ELIZABETH A. McCLANAHAN 

 JULY 22, 2003 

GENERAL SHALE PRODUCTS CORP. AND 

 LIBERTY MUTUAL FIRE INSURANCE COMPANY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 George L. Townsend (Chandler, Franklin & 

 O'Bryan, on briefs), for appellant. 

 Thomas G. Bell, Jr. (Timberlake, Smith, 

 Thomas & Moses, P.C., on brief), for 

 appellees. 

 

 James Nathan Walker (claimant) appeals a decision of the 

Virginia Workers' Compensation Commission denying his 

application to reinstate award benefits based on a change in 

condition. Claimant complains that: (1) the commission erred in 

holding that claimant's application was time-barred under Code 

§ 65.2-708 because the limitations period should have been 

tolled due to incapacity under Code § 65.2-528; (2) no credible 

evidence supports the commission's finding that claimant was not 

incapacitated during the limitations period; (3) the commission 

erred by not addressing claimant's argument that estoppel and/or 

 *

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

designated for publication. 
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imposition barred employer from asserting the bar of the statute 

of limitations; and (4) that the doctrine of imposition should 

apply to save claimant's change-in-condition claim from the bar 

of the statute of limitations.1 For the reasons that follow, we 

affirm the decision of the commission. 

I. Background 

 Claimant was working for General Shale Products Corp. when, 

on October 5, 1988, he suffered extensive, debilitating injuries 

in a forklift accident. Employer agreed that the injury was 

compensable, and the commission awarded claimant lifetime 

medical benefits and temporary total disability benefits. 

 Claimant was hospitalized at the Medical College of 

Virginia for eight to nine months immediately after the 

accident, and for additional periods of time until 1994. Since 

that time, claimant has not been hospitalized, except for 

occasional, injury-related psychiatric treatment. He began 

taking medication for depression and other psychological 

disorders as early as 1989. 

 In April 1994, claimant began treatment with Dr. Philip 

Halapin, a psychiatrist. Dr. Halapin met with claimant on a 

1

 We do not address claimant's questions 3 or 4 because they 

were not properly preserved. Rule 3.1 of the Rules of the 

Virginia Workers' Compensation Commission provides that failure 

of a party to assign any specific error in its request for 

review may be deemed by the commission to be a waiver of the 

party's right to consideration of that error on review. This 

Court will not consider those arguments for the first time on 

appeal. Rule 5A:18. 
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quarterly basis throughout the time period at issue, mainly to 

assess claimant's mental status and to adjust his medications as 

necessary. 

 On August 31, 1994, employer filed an application alleging 

that between March and August 1994 claimant failed to keep 

several medical reevaluation appointments with his treating 

doctor at the Medical College of Virginia.2 After a hearing on 

the matter, a deputy commissioner found that claimant had 

unjustifiably refused to undergo medical reevaluation and 

suspended claimant's benefits. The commission affirmed, stating 

that as of August 31, 1994, benefits would remain suspended for 

the duration of claimant's refusal to undergo medical 

reevaluation. 

 On November 5, 1998, claimant filed an application to 

reinstate benefits based on a change in condition, stating that 

he cured his refusal on September 22, 1995. Employer asserted a 

defense that the two-year statute of limitations for filing a 

change-in-condition application had run; thus, claimant was 

time-barred from having his benefits reinstated. Claimant 

conceded that the limitations period had run, but asked the 

commission to find that the statute of limitations on his 

2

 Under the Workers' Compensation Act, an employer has the 

right to have a claimant examined by a physician. Code 

§ 65.2-607. 
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change-in-condition application was tolled, pursuant to Code 

§ 65.2-528, due to incapacitation. 

 After presentation of medical evidence at hearing, the 

deputy commissioner found that claimant did not prove he was 

incapacitated. However, he reinstated claimant's benefits after 

holding that the two-year limitations period for filing a 

change-in-condition application did not apply because claimant's 

benefits were suspended, not terminated. 

 Upon request for review by employer, the commission 

affirmed the deputy commissioner's finding that claimant did not 

prove he was incapacitated. However, it denied claimant's 

change-in-condition application as time-barred under Code 

§ 65.2-708(A), holding that the limitations period did apply to 

benefits that had been suspended. This appeal followed. 

II. Analysis 

In accordance with well established principles, we consider 

the evidence in the light most favorable to the party prevailing 

below. States Roofing Corp. v. Bush Constr. Corp., 15 Va. App. 

613, 616, 426 S.E.2d 124, 126 (1993). "Factual findings by the 

commission that are supported by credible evidence are 

conclusive and binding upon this Court on appeal." So. Iron 

Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 

(1993). The commission's findings, if supported by credible 

evidence or reasonable inferences drawn from the evidence, will 

not be disturbed upon review, even though the record may contain 
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evidence to support a contrary finding. Morris v. Badger 

Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 

876, 877 (1986). 

 The Virginia Workers' Compensation Act defines a 

"change in condition" as 

A change in physical condition of the 

employee as well as a change in the 

conditions under which compensation was 

awarded, suspended, or terminated which 

would affect the right to, amount of, or 

duration of compensation. 

Code § 65.2-101. Claimant's award suspension affected his right 

to compensation. Therefore, once there was a change in the 

condition that was the cause for suspension, a 

change-in-condition application was the appropriate vehicle with 

which to seek reinstatement of benefits. 

 Review of a change-in-condition application "shall not be 

made after twenty-four months from the last day for which 

compensation was paid . . . ." Code § 65.2-708(A). Claimant's 

benefits were suspended on August 31, 1994; accordingly, the 

statute of limitations required that his application to 

reinstate benefits had to be reviewed before September 1, 1996. 

Claimant made his application on November 5, 1998, well after 

the limitation period had run. 

 Claimant contends that, in his case, the statute of 

limitations should have been tolled because he was mentally 

incompetent. Code § 65.2-528 states that under the Workers' 
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Compensation Act, a time limitation shall not run against any 

person who is incapacitated.3 The claimant has the burden to 

prove by credible evidence that he "did not have sufficient mind 

or reasoning powers to comprehend the ordinary affairs of life, 

or that he had lost control of his mental power to such a degree 

as to deprive him of sane and normal action" during the alleged 

period of incapacity. Rust Eng'g Co. v. Ramsey, 194 Va. 975, 

982, 76 S.E.2d 195, 199-200 (1953). The commission considered 

medical evidence presented at hearing by claimant and by 

employer. Claimant's case rested primarily on an opinion 

expressed in a letter written by his treating physician, 

Dr. Halapin, on October 6, 1998, in which the doctor stated that 

he diagnosed claimant with a psychotic disorder and 

post-traumatic stress disorder. The doctor opined that claimant 

had diminished capacity from 1994 to the time of hearing due to 

high doses of anti-psychotic medications; these drugs interfered 

with claimant's capacity to function, to comprehend ordinary 

affairs of life, and to reason to such a degree that it made it 

impossible for him to comprehend, remember, and perceive 

day-to-day events. Dr. Halapin stated that he arrived at this 

 3

 Code § 65.2-528 was amended effective January 1, 1998 to 

substitute "incapacitated" for "mentally incompetent." 

Claimant's alleged period of mental incompetence spans the 

change in the statute. However, the amendment has no impact on 

our analysis, as the term "incapacitated" is broader and 

encompasses the term "mentally incompetent." 
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opinion after an extensive review of claimant's medical records 

and from recollections of meetings with claimant. 

 The commission found, however, that a review of the medical 

records and notes made contemporaneously by Dr. Halapin during 

his meetings with claimant did not support the doctor's 

after-the-fact observations about claimant's capacity. Over the 

period of time at issue, during meetings with claimant, the 

doctor wrote notes indicating that claimant was, "alert," 

"stable," had "no psychotic thinking," and was "coping 

adequately." Moreover, the evidence showed that Dr. Halapin had 

claimant sign several legal documents between 1994 and 1998, 

apparently never questioning claimant's competency to do so. 

 In his deposition testimony, Dr. Halapin conceded that his 

after-the-fact opinion letter of October 6, 1998 may have been 

"a little overstated." Additionally, Dr. Halapin candidly 

admitted that he was interested in helping the claimant get his 

benefits, which the commission noted was a well-meaning attempt 

to help his patient, but did not overcome the fact that the 

contemporaneous medical treatment records did not prove 

incompetency or incapacity. 

 Employer asked Dr. Joel Silverman, Professor and Chairman 

of the Department of Psychiatry at the Medical College of 

Virginia, to review claimant's medical records. At hearing, 

employer entered into evidence a February 12, 1999 letter from 

Dr. Silverman to employer's counsel stating that claimant was 
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neither incompetent nor incapacitated. He said, "there was 

evidence that the patient was competent and had normal 

capacity." His opinion was that there was no evidence that 

claimant was excessively sedated or that he had negative mental 

effects from his medication. He maintained that the medication 

actually played a role in improving claimant's functionality, 

and noted that a decrease in the medication exacerbated the 

claimant's symptoms. 

 The commission, as fact finder, was entitled to weigh the 

medical evidence, and to accept Dr. Silverman's opinion as more 

persuasive, and reject Dr. Halapin's opinion. The commission 

found Dr. Halapin's opinion was retrospective and inconsistent 

with contemporaneous records, which did not support a finding of 

incapacity. 

 On appeal, this Court may not disturb a commission decision 

that is supported by credible evidence, even if contrary 

evidence exists. Georgia Pacific Corp. v. Robinson, 32 Va. App. 

1, 4-5, 526 S.E.2d 267, 268-69 (2000). While this Court has 

held that the opinion of a treating physician is entitled to 

great weight, the law does not require that the treating 

physician's opinion be accepted over that of others. Pilot 

Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 

S.E.2d 570, 572 (1986). "Medical evidence is not necessarily 

conclusive, but is subject to the commission's consideration and 
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weighing." Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 

677, 401 S.E.2d 213, 215 (1991). 

 There is credible evidence in the record to support the 

commission's finding that claimant failed to prove he was 

incapacitated during the time period in which he was required to 

file his application so as to toll the applicable statute of 

limitations. Accordingly, the decision of the commission is 

affirmed. 

 Affirmed.