COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Salem, Virginia 

FAMILY HEALTH CARE ASSOCIATES 

 OF SOUTHWEST VIRGINIA, P.C. 

v. Record No. 1238-97-3 

SYLVIA PERKINS 

 MEMORANDUM OPINION* BY 

-AND- JUDGE LARRY G. ELDER 

 DECEMBER 23, 1997 

SYLVIA PERKINS 

v. Record No. 1290-97-3 

FAMILY HEALTH CARE ASSOCIATES 

 OF SOUTHWEST VIRGINIA, P.C. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 B. L. Conway, II (Conway & Conway, L.L.C., on 

briefs), for Sylvia Perkins. 

 Ramesh Murthy (Penn, Stuart & Eskridge, on 

briefs), for Family Health Care Associates of 

Southwest Virginia, P.C. 

 This case involves cross-appeals of a decision of the 

Workers' Compensation Commission (commission) awarding medical 

benefits, temporary total disability benefits, and permanent 

partial disability benefits to Sylvia Perkins (claimant).1

 

Family Health Care Associates of Southwest Virginia (employer) 

contends: (1) that the commission erred when it concluded that 

claimant's entitlement to benefits was not barred by the notice 

 

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

designated for publication. 

 1Pursuant to the parties' joint motion to consolidate their 

appeals, we decide the issues raised in both appeals in this 

memorandum opinion. 
 2 

requirement of Code § 65.2-600, (2) that the evidence was 

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

shoulder injury and her gastrointestinal problems were causally 

connected to a work-related accident, and (3) that the commission 

erred when it awarded claimant permanent partial disability 

benefits because the evidence was insufficient to prove that she 

had reached maximum medical improvement.2

 Claimant contends that the evidence was insufficient to 

support the commission's finding that she was able to return to 

her pre-injury duties on July 25, 1994. For the reasons that 

follow, we affirm. 

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

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

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). As 

the trier of fact, the commission determines the weight of the 

evidence and the credibility of the witnesses. See Uninsured 

Employer's Fund v. Mounts, 24 Va. App. 550, 559, 484 S.E.2d 140, 

 

 2Employer also contends that the review opinion of the full 

commission is illegal and invalid because the composition of the 

commission that decided this case violated Code § 65.2-200, 

§ 65.2-704, and § 65.2-705. However, the record does not 

indicate that employer ever informed the full commission of its 

objection to its decision on this ground. The record indicates 

that employer received a copy of the commission's decision on May 

5, 1997 and that the decision clearly indicated that Deputy 

Commissioner Dely participated in the full commission's review of 

this case. The record does not indicate that employer ever filed 

a motion to reconsider or set aside the full commission's 

decision. Because employer did not raise this argument before 

the commission, we cannot consider it for the first time on 

appeal. See Rule 5A:18; Green v. Warwick Plumbing & Heating 

Corp., 5 Va. App. 409, 412-13, 364 S.E.2d 4, 6 (1988). 
 3 

144 (1997). If there is evidence or reasonable inferences that 

can be drawn from the evidence to support the commission's 

findings, they will not be disturbed on appeal, even though there 

is evidence in the record to support a contrary finding. See

Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 

279, 348 S.E.2d 876, 877 (1986); see also Manassas Ice & Fuel Co. 

v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991); Code 

§ 65.2-706(A). 

 I. 

 NOTICE 

 Employer contends that claimant failed to satisfy the notice 

requirement of Code § 65.2-600 and that the commission erred when 

it concluded that employer waived its right to raise claimant's 

lack of notice as a defense. We disagree. 

 Under Code § 65.2-600(A) and (D), an injured employee is 

required to give his or her employer a "written notice of the 

accident" "within thirty days after the occurrence of the 

accident . . . ." However, under Rule 7.2 of the Rules of the 

Workers' Compensation Commission, the commission has discretion 

to find that an employer has waived its "notice defense" under 

Code § 65.2-600 as a sanction for failing to "post and keep 

posted, conspicuously, in the . . . place of business at a 

location frequented by employees, notice of compliance with the 

provisions of the Act." 

 Regardless of whether claimant's oral notice of her accident 
 4 

on June 29, 1994 to Nurse Keen and Keen's subsequent conversation 

with Dr. Bailey were sufficient to satisfy Code § 65.2-600, we 

hold that the commission did not err when it concluded that 

employer waived its right to raise the "notice defense" by 

failing to comply with Rule 7.2. The commission's finding that 

employer failed to post the notice required by Rule 7.2 is 

supported by claimant's testimony, which the commission deemed 

credible. Furthermore, we cannot say that the commission's 

decision to impose the sanction provided by Rule 7.2 was an abuse 

of discretion. 

 II. 

 CAUSATION 

 Employer contends that the commission erred when it 

(1) found that claimant's shoulder injury resulted from the 

alleged accident on June 29, 1994 and (2) found that claimant's 

gastrointestinal problems were causally related to Dr. Bailey's 

medical treatment of claimant's shoulder on June 29, 1994. We 

disagree. 

 Claimant had the burden of proving by a preponderance of the 

evidence that she suffered "an injury by accident arising out of 

and in the course of [her] employment." Classic Floors, Inc. v. 

Guy, 9 Va. App. 90, 95, 383 S.E.2d 761, 764 (1989); Code 

§ 65.2-101. "In order to carry [the] burden of proving an 

'injury by accident,' a claimant must prove that the cause of 

[the] injury was an identifiable incident or sudden precipitating 
 5 

event and that it resulted in an obvious sudden mechanical or 

structural change in the body." Morris v. Morris, 238 Va. 578, 

589, 385 S.E.2d 858, 865 (1989) (emphasis in original). In 

addition, an employer is responsible for medical expenses that 

are (1) causally related to the injury, (2) medically necessary, 

and (3) performed pursuant to a referral from the treating 

physician, an emergency, or the permission of the employer, 

insurer, or the commission. See Breckenridge v. Marval Poultry 

Co., Inc., 228 Va. 191, 194, 319 S.E.2d 769, 770-71 (1984); Volvo 

White Truck Corp. v. Hedge, 1 Va. App. 195, 200, 336 S.E.2d 903, 

906 (1985); Code § 65.2-603. 

 First, we hold that the commission's finding that claimant's 

shoulder injury was causally related to her accident on June 29, 

1994 was supported by credible evidence and is binding on appeal. 

 Claimant testified that she had never suffered a shoulder injury 

prior to June 29, 1994. While working on June 29, 1994, claimant 

stepped on a stool in order to reach a file that she was 

retrieving for a nurse. After she retrieved the desired file, 

the stool on which she was standing "gave away" and claimant 

started to fall. As claimant attempted to grab the shelves 

holding the files in order to stop her fall, she felt a "pop" and 

a sharp pain in her left shoulder. The record established that 

claimant's left shoulder and the use of her left arm have been 

impaired ever since. The record contains no medical opinion 

regarding the existence or nonexistence of a causative link 
 6 

between claimant's accident on June 29, 1994 and her shoulder 

problems. However, a claimant is not required to produce a 

physician's opinion in order to prove causation. See Dollar 

General Store v. Cridlin, 22 Va. App. 171, 176-77, 468 S.E.2d 

152, 154-55 (1996). "The testimony of a claimant may . . . be 

considered in determining causation, especially where the medical 

testimony is inconclusive." Id. at 176, 468 S.E.2d at 154. 

Claimant's testimony regarding her accident and the medical 

history of her shoulder were sufficient to support the 

commission's finding that her shoulder problems were caused by 

her accident on June 29, 1994. 

 In addition, the commission's finding that claimant's 

anemia, gastrointestinal bleeding, and prepyloric ulcer were 

caused by Dr. Bailey's treatment of her shoulder on June 29, 1994 

was likewise supported by credible evidence.3 Although Dr. Rolen 

opined that claimant's hospitalization in July 1994 was "in no 

way related or necessitated by her shoulder injury or the 

treatment of her shoulder injury by Dr. Bailey," Dr. Clary opined 

that the medicines prescribed by Dr. Bailey were "the probable 

cause" of her gastrointestinal problems. In its role as fact 

finder, the commission was entitled to weigh the conflicting 

 

 3Employer does not argue that the treatment of claimant's 

gastrointestinal problems was either medically unnecessary or not 

properly authorized. See Breckenridge v. Marval Poultry Co., 

Inc., 228 Va. 191, 194, 319 S.E.2d 769, 770-71 (1984); Volvo 

White Truck Corp. v. Hedge, 1 Va. App. 195, 200, 336 S.E.2d 903, 

906 (1985); Code § 65.2-603. 
 7 

medical evidence and to resolve the conflict between the medical 

opinions in favor of claimant. "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). Because the record does not indicate that Dr. Clary's 

opinion was speculative or otherwise legally incompetent, it is 

sufficient to support the commission's finding of causation. 

 III. 

PERMANENT PARTIAL DISABILITY 

 Employer argues that the commission erred when it awarded 

permanent partial disability benefits to claimant because she had 

not yet reached maximum medical improvement. We disagree. 

 Code § 65.2-503 provides benefits to indemnify injured 

employees for permanent loss and disfigurement that is either 

partial or total. See Tumlin v. Goodyear Tire & Rubber Co., 18 

Va. App. 375, 380-81, 444 S.E.2d 22, 24-25 (1994). In order to 

establish entitlement to benefits under Code § 65.2-503, a 

claimant bears the burden of proving (1) that he or she has 

suffered one of the losses enumerated in the statute and (2) that 

the "incapacity is permanent and that the injury has reached 

maximum medical improvement." County of Spotsylvania v. Hart, 

218 Va. 565, 568, 238 S.E.2d 813, 815 (1977). 

 We hold that the commission's award of permanent partial 

disability benefits was not erroneous. Credible evidence 

supports its findings that claimant (1) suffered a permanent loss 
 8 

covered by Code § 65.2-503 (2) after reaching maximum medical 

improvement. Dr. McGarry opined on November 15, 1996 that 

claimant "has reached maximal medical improvement" and rated the 

permanent impairment of her upper left extremity at twenty 

percent. In addition, claimant's refusal of the shoulder surgery 

recommended by Dr. McGarry did not render her legally incapable 

of proving that her partial disability was permanent. Dr. 

McGarry advised claimant that the proposed surgery was risky and 

that she "could lose more motion" in her arm. Based on the 

information provided to claimant about the recommended surgery, 

we cannot say that the commission erred when it concluded that 

her refusal was justified. Cf. Holland v. Virginia Bridge and 

Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867, 868 

(1990). 

 IV. 

LENGTH OF CLAIMANT'S DISABILITY 

 Claimant contends that the evidence was insufficient to 

support the commission's finding that she was able to return to 

her pre-injury duties on July 25, 1994. We disagree. 

 Because employer "prevailed" on this issue below, we view 

the relevant evidence in the light most favorable to it. 

 We hold that credible evidence in the record supports the 

commission's finding that claimant's pre-injury duties as an 

appointment secretary were within the restrictions imposed by Dr. 

Clary when he released claimant to work on July 25, 1994. When 
 9 

he released claimant to work, Dr. Clary placed the following 

restrictions on her activity: 

 [Claimant] was advised no work until 7/25/94 

with no hard labor or lifting greater than 15 

pounds of weight for three months, no 

reaching overhead or stretching for extended 

periods of time, no bending over for extended 

periods of time, no climbing, and no 

excessive hours of work per day. 

Claimant testified that her position as an appointment secretary 

was a "desk job" and that her duties entailed "[a]nswering the 

telephone and making appointments on the computer." She 

testified that, although she occasionally retrieved and returned 

files for nurses, which did require her to reach overhead, on the 

whole she did "very little filing." Claimant also testified that 

she worked eight hours a day, four days a week. Dr. Bailey, who 

owned employer, testified that claimant's duties "were basically 

to answer the phone and to do scheduling" and that her job as an 

appointment secretary was "primarily a desk job." Debra Bailey, 

who was employer's administrator, testified that claimant's 

specific duties did not include retrieving files for nurses. 

Because credible evidence supports the commission's findings that 

"overhead filing was [not] a requirement of [claimant's] job" and 

that claimant was capable of performing her pre-injury work after 

July 25, 1994, they are binding and conclusive on appeal. 

 For the foregoing reasons, we affirm the commission's award. 

 Affirmed.