COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Benton and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

FAIRFAX HOSPITAL AND INOVA HEALTH 

 SYSTEM FOUNDATION, INC. 

 MEMORANDUM OPINION* BY 

v. Record No. 1012-99-4 JUDGE JAMES W. BENTON, JR. 

 JANUARY 27, 2000 

CANDY K. POST 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Eric J. Berghold (McCandlish & Lillard, P.C., 

on brief), for appellants. 

 Craig A. Brown (Ashcraft & Gerel, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Fairfax Hospital appeals from the commission's award of 

benefits to Candy K. Post for various periods of temporary total 

and temporary partial disability. The Hospital raises sixteen 

issues which assert that the commission erred in ruling (1) that 

Post's claim is not barred by the statute of limitations, (2) that 

the Hospital did not timely file the first report of accident, (3) 

that the Hospital paid compensation payments to Post prior to 

1994, and (4) that Post's disability and treatment are causally 

related to her injury by accident. 
I. 

 The parties stipulated that on June 18, 1993, Post sustained 

an injury by accident to her back arising out of and in the course 

of her employment. The Hospital also stipulated that Post was 

disabled for the various periods she claimed through March 4, 

1996; that the Hospital received notice of the accident on the day 

of the accident; that the Hospital paid compensation benefits to 

Post through September 10, 1994; that the Hospital filed the first 

report of accident on June 30, 1994; that the commission mailed 

the compensation guide to Post on July 13, 1994; and that Post 

filed her claim for benefits in August 1995. 

 At the evidentiary hearing, Post testified that she received 

"compensation checks" from the Hospital when she missed time from 

work or suffered income loss after the accident. Post also 

testified that she did not file a claim because "[she] was getting 

paid . . . [and because she] was seeing [her] physician all the 

time and [the Hospital was] paying [her] the whole time [she] was 

injured." She testified that whenever she incurred medical 

expenses or lost time from work her supervisor told her "to file 

the workers' comp," which she understood to mean that she was 

required to complete and return the various paperwork to the 

insurance company. Post testified that this "was just a 

procedure, like when [she] first went into the emergency room, the 

paperwork and everything [she] had to do." When Post submitted 

the paperwork as instructed, the Hospital paid her medical bills 

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and sent her checks to compensate her for lost wages. In August 

of 1995, however, the Hospital sent to Post the bill for her 

recent medical treatment and informed her that the Hospital would 

not pay it because the statute of limitations had expired. She 

then filed with the commission a claim for benefits. 

 The commission ruled that the two year statute of limitations 

for filing claims, see Code § 65.2-601, was tolled pursuant to 

Code § 65.2-602. The Hospital appeals from the award of benefits 

to Post. 

II. 

 In pertinent part Code § 65.2-602 provides as follows: 

In any case where an employer has received 

notice of an accident resulting in 

compensable injury to an employee . . . , 

and whether or not an award has been 

entered, such employer nevertheless has paid 

compensation or wages to such employee 

during incapacity for work . . . or the 

employer has failed to file the report of 

said accident with the . . . Commission as 

required by [Code] § 65.2-900, and such 

conduct of the employer has operated to 

prejudice the rights of such employee with 

respect to the filing of a claim prior to 

expiration of a statute of limitations 

otherwise applicable, such statute shall be 

tolled for the duration of such payment or, 

as the case may be, until the employer files 

the first report of accident . . . or [the 

employee] has received after the accident a 

workers' compensation guide . . . . 

"Thus, notice, specified conduct and prejudice are the 'three 

criteria' that must be established by [an employee] seeking 

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relief pursuant to . . . [the] statute." Bristol Newspapers, 

Inc. v. Shaffer, 16 Va. App. 703, 706, 432 S.E.2d 23, 25 (1993). 

 "It is well settled that where the findings of fact of the 

Commission are based on credible evidence, they are binding and 

conclusive upon this Court." Board of Supervisors v. Taylor, 1 

Va. App. 425, 430-31, 339 S.E.2d 565, 568 (1986). Furthermore, 

if the record contains evidence or reasonable inferences that 

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

findings, we will not disturb those findings even though the 

record may contain evidence to support contrary findings. See

id. Noting our holding in Shaffer, the commission found that 

the evidence proved "a convergence of notice, specific conduct, 

and prejudice" sufficient to toll the statute. 

 The Hospital first contends that it was not required to 

file a report prior to June 1994. The record contains credible 

evidence, however, to support the commission's finding that Post 

"missed 40 days of work as a result of the . . . accident . . . 

and suffered compensable wage loss for a period of eight 

consecutive weeks following the injury." Although the Hospital 

received notice of the accident on June 18, 1993, the Hospital 

did not file the first report of accident until June 30, 1994. 

In view of the stipulations of the parties and Post's testimony, 

the commission had a sufficient basis to find that the 

Hospital's first report of accident was not timely. See Code 

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§ 65.2-900; 16 VAC 30-90-30(A) (requiring the first report to be 

filed within 10 days of the injury). 

 The Hospital also contends the evidence failed to prove 

that Post suffered prejudice. We disagree. The commission 

relied upon Post's testimony that she did not file her claim 

earlier because she had completed and sent the paperwork to the 

Hospital that her supervisors told her was necessary "to file 

the workers' comp." The evidence proved the Hospital paid 

either wage loss benefits or wages in lieu of compensation in 

1993 and in 1994 for time Post was unable to work. When the 

Hospital paid her compensation benefits and medical expenses, 

Post could have reasonably concluded that she was receiving 

those payments because she sent the Hospital the necessary 

"paperwork." 

 Post testified and the commission found from Post's 

testimony that she received ongoing wage loss benefits after the 

accident. According to well established principles, "[w]e do 

not retry the facts before the Commission nor do we review the 

weight, preponderance of the evidence or the credibility of 

witnesses." Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 

302 S.E.2d 507, 510 (1983). Indeed, the parties stipulated that 

the Hospital paid compensation to Post as late as September 10, 

1994. The record, thus, supports the commission's finding that 

the circumstances proved that Post was prejudiced and that the 

statute was tolled until the Hospital filed its first report of 

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accident. Furthermore, as we ruled in Commonwealth Medical 

Institute v. Stop-Headstart Program, 18 Va. App. 461, 453 S.E.2d 

566 (1994), Post's "receipt of the guide did not retrospectively 

eliminate the tolling of the statute of limitations which had 

already occurred." Id. at 463, 453 S.E.2d at 566. 

III. 

 On appeal, we must consider the evidence in the light most 

favorable to the party prevailing below. See Crisp v. Brown's 

Tysons Corner Dodge, 1 Va. App. 503, 339 S.E.2d 916 (1986). 

Post testified that her back injury has been symptomatic since 

June of 1993. She also testified that "every time I go to the 

doctor it's pretty much the same thing and it's a reoccurrence 

. . . it was the same injury, it felt the same." Her testimony 

is consistent with her medical records, which clearly reveal 

that Post continued to complain of low back pain. In addition, 

Post's treating physician, Dr. Mark Theiss, reported that Post's 

disability through March of 1996 was caused at least in part by 

her injury by accident and that her ruptured discs at L4-5 and 

L5-S1 were completely caused by the accident. Thus, the 

evidence proved a continuing compensable causal relationship 

between her disabilities and the accident. "[F]ull benefits 

will be allowed when it is shown that 'the employment is a 

contributing factor to the disability.'" Smith v. Fieldcrest 

Mills, Inc., 224 Va. 24, 28-29, 294 S.E.2d 805, 808 (1982) 

(citation omitted). 

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 Accordingly, we affirm the commission's award. 

 Affirmed. 

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