COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Overton 

Argued at Salem, Virginia 

WALTER EVERETT CHILDRESS 

v. Record No. 0149-95-3 MEMORANDUM OPINION* BY 

 JUDGE NELSON T. OVERTON 

APPALACHIAN POWER COMPANY FEBRUARY 13, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Jerry O. Talton for appellant. 

 Richard D. Lucas (Abigail L. Perkins; Woods, 

Rogers & Hazlegrove, P.L.C., on brief), for 

appellee. 

 

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

designated for publication. 

 Walter Childress appeals from the commission's opinion which 

relieved Appalachian Power, his employer, from liability for 

certain medical expenses. Childress claims that this issue was 

not properly before the commission. Employer cross-appeals from 

a separate finding that Childress did not unjustifiably refuse 

medical treatment. On the first issue, we find that the medical 

expenses were not properly before the commission, and we vacate 

that portion of the commission's decision. We further find that 

Childress did not unjustifiably refuse medical treatment and 

affirm the commission on that issue. 

 Childress suffered a compensable injury in 1985 while 

working for Appalachian Power and, over the course of several 

years, experienced recurrent disability. In 1994, Childress 
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refused a selected employment position offered by his employer. 

In addition, he had begun seeing a psychiatrist and seeking 

medical treatment from a physician not listed on the employer's 

offered panel. The employer filed applications for a hearing, 

claiming that: (1) Childress unjustifiably refused the proffered 

selected employment; and (2) by seeking treatment with an 

unauthorized physician, Childress had in effect refused medical 

treatment. 

 The commission, on review, found that Childress had not 

refused the selected position without justification. It also 

found, however, that Childress' psychological problems and 

additional medical treatment were not compensable by the 

employer. 

 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). "[I]t 

is fundamental that a finding of fact made by the commission is 

conclusive and binding upon this court on review. A question 

raised by conflicting medical opinion is a question of fact." 

Department of Corrections v. Powell, 2 Va. App. 712, 714, 347 

S.E.2d 532, 533 (1986). The fact that no contrary evidence 

exists in the record is of no consequence if credible evidence 

supports the commission's finding. Wagner Enters., Inc. v. 

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 

 The commission determined that Childress was physically 
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incapable of returning to the selective employment. It based 

this determination upon submitted medical records from several 

physicians. Credible evidence does exist to support the 

commission, and its decision must be affirmed. 

 The commission also found that Childress' additional 

expenses were not the employer's responsibility. This finding, 

however, was inappropriate for the commission to make. No claim 

for benefits for those expenses had been made. The only issues 

on the employer's application for hearing were the refusal of the 

selected employment and the refusal of medical treatment. The 

commission found that the refusal of selective employment was not 

unjustified. The deputy commissioner properly decided that 

seeking unauthorized care does not equate with an unjustified 

refusal of medical treatment. Davis v. Brown & Williamson 

Tobacco Co., 3 Va. App. 123, 126, 348 S.E.2d 420 (1986). After 

those two issues were settled, the commission had no reason to 

make further findings, especially as no claim for benefits for 

those expenses had been made. 

 Accordingly, the commission's decision with respect to the 

compensability of the psychological disability and the additional 

medical expenses is vacated. The parties are free to initiate 

other proceedings to address this issue if they be so advised. 

 Affirmed in part, reversed in part.