COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Retired Judge Cole*

LONNIE JAMES BREEDING 

 MEMORANDUM OPINION**

v. Record No. 1134-01-3 PER CURIAM 

 SEPTEMBER 11, 2001 

CLINCHFIELD COAL COMPANY/ 

 THE PITTSTON COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Ginger J. Largen; Morefield Kendrick Hess & 

Largen, P.C., on brief), for appellant. 

 (Ramesh Murthy; Lisa Frisina Clement; 

PennStuart, on brief), for appellee. 

 Lonnie James Breeding contends the Workers' Compensation 

Commission erred in finding that (1) Breeding was not totally 

disabled due to a psychiatric condition causally related to his 

compensable June 28, 1998 injury by accident; and (2) Breeding 

unjustifiably refused selective employment offered by 

Clinchfield Coal Company. Upon reviewing the record and the 

briefs of the parties, we conclude that this appeal is without 

merit. Accordingly, we summarily affirm the commission's 

decision. See Rule 5A:27. 

 *

 Retired Judge Marvin F. Cole took part in the 

consideration of this case by designation pursuant to Code 

§ 17.1-400(D). 

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

designated for publication. 
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I. 

 "Medical evidence is not necessarily conclusive, but is 

subject to the commission's consideration and weighing." 

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 

S.E.2d 213, 215 (1991). Thus, "[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 

231, 236 (1989). Unless we can say as a matter of law that 

Breeding's evidence sustained his burden of proving that he was 

totally disabled as a result of a psychiatric condition causally 

related to his compensable injury by accident, the commission's 

findings are binding and conclusive upon us. See Tomko v. 

Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 

(1970). 

 In ruling that Breeding's evidence failed to sustain his 

burden of proof, the commission accepted the opinions of 

Drs. Paul R. Kelley and Richard G. Salamone and rejected the 

contrary opinions of Drs. Neil Dubner and B. Wayne Lanthorn, a 

licensed clinical psychologist. The commission found as 

follows: 

The record reflects that Dr. [Neal] Jewell, 

[Breeding's treating orthopedist,] evaluated 

[Breeding] on a consistent basis throughout 

the relevant period[, i.e., from July 1999 

forward]. Neither before nor after July 

1999 did Dr. Jewell note any signs of any 

disabling psychiatric condition, or, in 

fact, any psychiatric signs or symptoms of 
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any kind. We note that Dr. Jewell never 

requested a referral for psychiatric 

treatment at any stage. In July 1999, 

contemporaneous with Dr. Dubner's first 

evaluation, [Breeding] independently sought 

an evaluation from Dr. [Ken] Smith. As part 

of his evaluation Dr. Smith performed a 

mental status examination from which he 

concluded that [Breeding] did not suffer 

from any psychiatric condition, whether 

disabling or not. 

 A careful reading of Dr. Dubner's 

treatment records reveal that his diagnosis 

and opinion is based primarily on 

[Breeding's] reports of incapacitating pain 

of such severity that [he] must spend a 

significant portion of the time lying down. 

Dr. Dubner noted by history that [Breeding] 

"frequently will lie down to give himself 

relief" and "a number of months ago he spent 

probably half his time lying around just 

trying to gain some relief." We contrast 

this history with the contemporaneous 

medical reports from Dr. Jewell, Dr. Smith, 

Dr. [Earl K.] Wilson, Dr. [Charles] Bolick, 

and that of the evaluator for the Functional 

Capacity Evaluation [("FCE")]. None of the 

physicians noted complaints to this degree. 

Dr. Jewell as well as the therapist who 

performed the [FCE] noted signs of symptom 

magnification. Likewise Dr. Kelley and 

Dr. Salamone noted test results consistent 

with symptom magnification. Dr. Salamone's 

opinion that it would require a "fairly 

severe depression" to preclude engagement in 

gainful employment, was not specifically 

rebutted. 

 Further, we note that Dr. Jewell 

evaluated [Breeding] in January and March 

2000. During neither visit did he document 

any complaints of psychiatric impairment nor 

signs and symptoms thereof independent of 

any subjective complaints. The emergency 

room physician did not record by history any 

complaints regarding psychiatric symptoms or 
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disability flowing therefrom [on February 

22, 2000]. 

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

medical evidence. In doing so, the commission accepted the 

opinions of Drs. Kelley and Salamone, while rejecting the 

contrary opinions of Drs. Dubner and Lanthorn. Thus, viewed in 

the light most favorable to the prevailing party below, see R.G. 

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

788, 788 (1990), the evidence demonstrates an absence of any 

significant psychiatric symptoms or complaints by Breeding to 

Drs. Jewell, Smith, Wilson, and the FCE evaluator during the 

relevant time period. The evidence also supports the reports of 

Breeding's symptom magnification. Moreover, in light of the 

opinions of Drs. Kelley and Salamone, the evidence does not 

establish as a matter of law that Breeding's evidence proved he 

was totally disabled due to a psychiatric condition causally 

related to his compensable accident as of February 25, 2000. 

II. 

 "To support a finding of refusal of selective employment 

'the record must disclose (1) a bona fide job offer suitable to 

the employee's capacity; (2) [a job offer that was] procured for 

the employee by the employer; and (3) an unjustified refusal by 

the employee to accept the job.'" James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) 

(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 
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97, 98, 335 S.E.2d 379, 380 (1985)). "When the employer 

establishes that selective employment was offered to an employee 

that was within the employee's capacity to work, the employee 

bears the burden of establishing justification for refusing the 

offered employment." Food Lion, Inc. v. Lee, 16 Va. App. 616, 

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

 Breeding failed to prove that as of February 25, 2000, he 

was totally disabled due to a psychiatric condition causally 

related to his compensable accident. Furthermore, Dr. Jewell's 

March 6, 2000 opinion indicated that Breeding's physical 

condition had not changed since January 17, 2000 and that 

Breeding could perform the selective employment previously 

approved. Therefore, we cannot conclude as a matter of law that 

Breeding proved he was justified in refusing selective 

employment as of that date. 

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

Affirmed.