COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Bumgardner 

Argued at Alexandria, Virginia 

DELLA SUE MARKWELL 

 MEMORANDUM OPINION* BY 

v. Record No. 1572-97-4 JUDGE RUDOLPH BUMGARDNER, III 

 APRIL 28, 1998 

AMERICAN CONVENIENCE, INC. AND 

 UNINSURED EMPLOYER'S FUND 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Peter J. Jones for appellant. 

 Diane C.H. McNamara for appellee American 

Convenience, Inc. 

 No brief or argument for appellee Uninsured 

Employers' Fund. 

 Della Sue Markwell contends that the Workers' Compensation 

Commission erred in finding that (1) there was no compensable 

injury after January 20, 1995 and (2) American Convenience, Inc., 

was not required to pay for counseling services rendered by Melba 

Hendrix. American Convenience appeals on the issue of whether 

the claimant sustained a compensable injury by accident. Upon 

reviewing the record and the briefs of the parties, we conclude 

that the cross-appeals are without merit. Accordingly, we affirm 

the commission's decision. 

 The claimant worked as a clerk at American Convenience, 

Inc., when she was robbed December 1, 1994. She claims 

compensable injuries from that date until September 3, 1996. The 

 

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

designated for publication. 
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deputy commissioner found that the claimant had an injury by 

accident (post-traumatic stress syndrome) which rendered her 

totally disabled from work from December 8, 1994 through June 6, 

1995 and from January 23, 1996 through September 3, 1996. He 

also found that the employer was not responsible for the 

claimant's counseling costs because Melba Hendrix's services were 

not medical attention. The compensation commission found that 

the claimant had sustained a compensable injury, but entered a 

modified award for temporary total disability from December 8, 

1994 through January 20, 1995 only. It based the decision on the 

finding that the claimant's medical evidence failed to prove the 

disability continued beyond January 20, 1995. The commission 

affirmed the opinion that the employer was not responsible for 

Melba Hendrix's services. 

 The claimant was referred to Melba Hendrix, a licensed 

professional counselor, by the Victim-Witness Coordinator of the 

Commonwealth's Attorney's Office. Ms. Hendrix referred the 

claimant to Dr. Ralph Robinson, a general practitioner. Dr. 

Robinson prescribed medicine for the claimant and last saw her on 

January 20, 1995. Dr. Robinson did not supervise Ms. Hendrix's 

work. 

 The claimant contends that the commission erred in not 

considering the testimony and records of Ms. Hendrix as expert 

testimony on the issue of disability. Relying on Broschinski v. 

Alcoa Building Products, No. 0651-95-3 (Va. Ct. App. Sept. 19, 

1995), and Neff v. Houff Transfer Inc., VWC File No. 165-33-84 
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[95/1 WC 1653384] (January 31, 1995), the commission ruled that 

Ms. Hendrix's office notes were not a "medical report" for 

purposes of the Workers' Compensation Act. Code § 65.2-603. The 

commission found that Ms. Hendrix's notes were not relied upon by 

any medical expert. 

 The claimant distinguishes Broschinski, and argues that 

Hendrix's notes can be treated as medical reports, because 

Hendrix testified at the hearing and thus overcame the hearsay 

objection. Broschinski is not a case based upon hearsay 

objections to evidence. The case stands for the proposition that 

a licensed professional counselor's report is not a "medical 

report" as defined in Code § 65.2-603. 

 The commission's ruling is one of expertise, the ability of 

a licensed professional counselor to diagnose a medical 

condition. There was no showing that Ms. Hendrix had the 

expertise to give the opinion offered at the hearing. While Ms. 

Hendrix has a master's degree in counseling, she is not a 

physician. Nor are her opinions or reports incorporated into a 

treating physician's opinion. 

 On appeal, the commission's construction of the Act is 

entitled to great weight. City of Waynesboro v. Harter, 1 Va. 

App. 265, 269, 337 S.E.2d 901, 903 (1985). Commission findings 

are binding on appeal if supported by credible evidence. Code 

§ 65.2-706(A); Fairfax Hospital v. DeLaFleur, 221 Va. 406, 410, 

270 S.E.2d 720, 722 (1980). Absent some showing that a licensed 

professional counselor is competent to give opinions in this area 
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of medicine, the commission did not err in declining to rely on 

that evidence. 

 The claimant also contends that the commission erred in 

refusing to order the employer to pay for services rendered by 

Ms. Hendrix. An employer's liability for paying for medical 

treatment is limited to treatment provided by a physician or 

treatment which is "rendered under the supervision of, or in 

conjunction with treatment rendered by, a physician." Neff, at 

3; Code § 65.2-603. The claimant argues that evidence that Ms. 

Hendrix's name was written on a prescription pad by Dr. Robinson 

indicates that he referred the claimant to Ms. Hendrix. However, 

there was other evidence, including testimony of both the 

claimant and Ms. Hendrix, that showed the Victim-Witness 

Coordinator referred the claimant to Ms. Hendrix and that Ms. 

Hendrix suggested that the claimant contact Dr. Robinson. There 

was also clear evidence that the doctor did not supervise Ms. 

Hendrix and only conferred with her to advise on what medicines 

he was giving to the patient. Dr. Robinson did not treat the 

claimant after January 20, 1995, and after that date no doctor 

dealt with Ms. Hendrix until January 1996. The commission's 

ruling that the employer is not liable for the counseling fees is 

supported by credible evidence. 

 Finally, the claimant argues that there is no evidence to 

support the commission's finding that there was no disability 

after January 20, 1995. The claimant alleges she suffered from 

post-traumatic stress disorder which made her have panic attacks 
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whenever she saw an African-American. She claimed that this 

continued from December 4, 1994 through the date of the 

commission's hearing on September 3, 1996. The employer 

presented several witnesses who stated that the claimant did not 

exhibit this condition. 

 There is no medical evidence of the claimant's condition 

from January 20, 1995 until Dr. Chua opines that she has 

continued to be disabled in April, 1996.1

 The commission did not 

find Dr. Chua's opinion regarding disability persuasive because 

it lacked medical corroboration. In view of all the evidence, 

the commission was entitled to determine the sufficiency of the 

evidence and to reject Dr. Chua's unsubstantiated assessment. 

Because the claimant failed to present evidence to support her 

claim of continuing disability after January 20, 1995, the 

decision of the commission will be affirmed. 

 Employer contends that the commission erred in finding a 

compensable injury beginning December 8, 1994 because there was 

no competent medical evidence to support that conclusion. The 

commission's decision is based on credible evidence and shall not 

be disturbed on appeal. 

 For the foregoing reasons, the commission's May 28, 1997 

decision will be affirmed. 

 Affirmed.

 

 1The commission did not rely on Ms. Hendrix's notes or 

testimony for the reasons stated.