COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

RETREAT HOSPITAL and 

 CONTINENTAL INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1465-97-2 JUDGE SAM W. COLEMAN III 

 FEBRUARY 24, 1998 

MARLENE HAMMERSLEY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 John M. Oakey, Jr. (F. Brawner Greer; 

McGuire, Woods, Battle & Boothe, on brief), 

for appellants. 

 Timothy J. Healy (Levit and Mann, on brief), 

for appellee. 

 Retreat Hospital and its insurer (employer) contend that the 

Workers' Compensation Commission erred when it found: (1) that 

Marlene Hammersley's (claimant) continuing disability is causally 

related to her compensable January 15, 1996 injury by accident, 

and (2) that she adequately marketed her residual work capacity. 

 Because credible evidence supports the commission's findings, we 

affirm the commission's award. 

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

to the party prevailing before the commission. See R.G. Moore 

Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 

(1990). The commission's factual findings are conclusive and 

binding on appeal if supported by credible evidence in the 

 

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

designated for publication. 
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record. See Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 712, 

427 S.E.2d 215, 217 (1993); Classic Floors, Inc. v. Guy, 9 Va. 

App. 90, 95, 383 S.E.2d 761, 764 (1989). 

 Viewed accordingly, the evidence proved that claimant worked 

as a progressive care nurse for employer for twenty-three years. 

 While doing yard work in September 1994, claimant injured her 

neck which resulted in neck and shoulder pain. Dr. Claude Wilson 

diagnosed claimant with acute cervical disc herniation at C6-7 

with severe C7 radiculopathy, for which he performed a cervical 

discectomy and fusion and placed claimant on a fifty pound 

lifting restriction. After the yard work injury, claimant 

aggravated the cervical disc condition on several occasions from 

non-work-related exertion. 

 On January 15, 1996, when lifting a patient, claimant 

suffered a compensable injury by accident that aggravated her 

pre-existing neck condition. Dr. Wilson reported that "[e]very 

time she lifts much she develops some radiculitis corresponding 

to a C7 nerve root." On January 24, 1996, Dr. Wilson advised 

claimant's supervisor that claimant "was in a situation at work 

recently where she had to do some lifting and aggravated her 

radiculitis in her left arm." He stated that claimant was unable 

to lift the amount of weight usually required to perform her 

nursing duties and recommended a ten pound lifting restriction. 

 Dr. Wilson reexamined claimant on March 20, 1996. He 

reviewed the results of a recent MRI, noted no abnormalities in 
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claimant's cervical discs, and reported that she could "gradually 

increase her activities" and "start lifting more." 

 On September 13, 1996, in a letter to counsel, Dr. Wilson 

opined: 

 It is my opinion that the lifting, twisting 

incident which occurred on January 15 

aggravated a preexisting condition of 

cervical radiculopathy in Ms. Hammersley. It 

is my professional opinion that this incident 

exacerbated the problem such that Ms. 

Hammersley is unable to continue to perform 

the duties required as a progressive care 

nurse.

(Emphasis added). Subsequently, in his deposition, Dr. Wilson 

stated that the reason claimant could no longer work as a 

progressive care nurse was because the job required lifting that 

would likely cause her to re-aggravate the pre-existing cervical 

condition. 

 Claimant immediately returned to work after the January 15 

accident, performing a light duty job in which she delegated work 

to other nurses. In late January, employer directed her to take 

a medical leave of absence. Claimant contacted employer's human 

resources coordinator and inquired as to other job vacancies with 

employer. She was not qualified for some of the vacancies, and 

others either required lifting weight in excess of her 

restrictions or were eliminated. Claimant admitted that she was 

offered a part-time job in a doctor's office in February 1996, 

but she declined it because the job did not offer the same 

benefits as employer, and she desired to continue trying to find 
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a job at the hospital. On April 23, 1996, the employer 

terminated claimant. 
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CAUSATION

 It is well established that the commission's determination 

of causation is a factual finding that will not be disturbed on 

appeal if supported by credible evidence. See American Filtrona 

Co. v. Hanford, 16 Va. App. 159, 165, 428 S.E.2d 511, 515 (1993); 

Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 229, 230, 409 

S.E.2d 824, 826 (1991). "[A] party seeking compensation bears 

the burden of proving his disability and the periods [or 

duration] of that disability." Marshall Erdmen and Assoc. v. 

Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 150 (1997). Here, 

Dr. Wilson's opinion in his September 13 letter to counsel "that 

Ms. Hammersley is unable to continue to perform the duties 

required as a progressive care nurse," is credible evidence to 

support the commission's finding that claimant's continuing 

disability was causally related to her compensable injury by 

accident. Although Dr. Wilson's statements at the deposition may 

arguably conflict with his earlier medical opinion rather than 

explain the primary cause of claimant's disability, the 

commission was entitled to determine the weight, meaning, and 

credibility to give to Dr. Wilson's respective statements. Where 

the statements can be read in a manner to be compatible, the 

commission does not err by reconciling the statements and giving 

meaning to both opinions. Furthermore, "[q]uestions 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 
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231, 236 (1989). "The fact that there is contrary 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 rule 

respecting conflicting medical opinions also applies when . . . a 

sole expert gives conflicting opinions." Chandler v. Schmidt 

Banking Co., 228 Va. 265, 267, 321 S.E.2d 296, 298 (1984). See

The Greif Cos. v. Hensley, 22 Va. App. 546, 552, 471 S.E.2d 803, 

806 (1996) ("The Commission's findings of fact are conclusive and 

binding on this Court if supported by credible evidence. This 

rule applies when an expert's opinion contains internal 

conflicts.") (citations omitted). Because the commission's 

finding that claimant's disability continues to be "exacerbated" 

by the incident is supported by credible evidence in the record, 

we uphold that finding on review. See Classic Floors, 9 Va. App. 

at 95, 383 S.E.2d at 764. 

RESIDUAL CAPACITY

 Employer's contention regarding the marketing of residual 

capacity is that claimant unjustifiably declined selective 

employment procured by employer at the nearby doctor's office. 

"If an injured employee refuses employment secured for him 

suitable to his capacity, he shall not be entitled to any 

compensation at any time during the continuance of such refusal, 

unless in the opinion of the Commission such refusal was 

justified." DePaul Medical Center v. Brickhouse, 18 Va. App. 
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506, 508, 445 S.E.2d 494, 495 (1994) (citing Code § 65.2-510) 

(emphasis in original). Code § 65.2-510 vests broad discretion 

in the commission to determine whether under the circumstances an 

employee is justified in refusing selective employment. See

Brickhouse, 18 Va. App. at 508, 445 S.E.2d at 495. Here, the 

commission concluded that claimant's refusal was justified 

because she "concentrated her efforts toward returning to [the 

hospital] during her . . . leave of absence and rejected a 

part-time job with no benefits." Considering the fact that 

claimant expected and was attempting to return to work at the 

hospital, and in light of the relatively brief period of time 

that she was away from work, credible evidence supports the 

commission's determination that claimant justifiably refused the 

selective employment. Therefore, we uphold the commission's 

finding. See id.; Food Lion, Inc. v. Lee, 16 Va. App. 616, 

619-20, 431 S.E.2d 342, 344-45 (1993). 

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

 Affirmed.