COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

Argued at Salem, Virginia 

CLINCH VALLEY MEDICAL CENTER AND 

 TRANSPORTATION INSURANCE COMPANY 

 OPINION BY 

v. Record No. 0828-00-3 JUDGE RUDOLPH BUMGARDNER, III 

 DECEMBER 19, 2000 

JOHNNIE S. HAYES 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Ramesh Murthy (Lisa Frisina Clement; Penn, 

Stuart & Eskridge, on briefs), for 

appellants. 

 D. Edward Wise, Jr. (Arrington, Schelin & 

Herrell, P.C., on brief), for appellee. 

 Clinch Valley Medical Center appeals the continuation of an 

award of benefits to Johnnie S. Hayes by the Workers' 

Compensation Commission. The employer contends the commission 

(1) acted without authority when it authorized a deputy 

commissioner to sit with two commissioners to review a 

termination of the award opinion and (2) erred when it found the 

employer failed to prove the employee's condition was not 

related to the work accident. We conclude the commission did 

not err and affirm its decision. 

 The employee fell and hit the back of his head on concrete 

stairs. The commission awarded benefits commencing October 31, 

1998 pursuant to a memorandum of agreement. On June 23, 1999, 
the employer filed an application alleging the employee's 

current condition was not related to the work accident. The 

deputy commissioner granted the application and terminated 

compensation. On a review of the record, a deputy commissioner 

sat with two members of the commission. They concluded the 

employer "failed to prove that the effects of the work accident 

have fully dissipated, and that the [employee's] continuing 

disability is due entirely to another cause" and reinstated the 

employee's benefits. The employer filed a motion to reconsider 

and argued a deputy could not sit in place of one of the three 

members of the commission to hear the review. 

The three members of the commission considered the motion 

to reconsider and denied it unanimously. They reasoned the 

commission was responsible for adjudicating all issues and 

controversies relating to the Workers' Compensation Act. Code 

§ 65.2-201(A).1 The commission had the authority to make rules 

and regulations for carrying out the Act. The commission could 

appoint deputies as necessary to carry out its responsibilities 

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 Code § 65.2-201. General duties and 

 powers of the Commission. 

A. It shall be the duty of the 

Commission to administer this title and 

adjudicate issues and controversies relating 

thereto. The Commission shall make rules 

and regulations for carrying out the 

provisions of this title. 

B. The Commission may appoint 

deputies, bailiffs, and such other personnel 

as it may deem necessary for the purpose of 

carrying out the provisions of this title. 

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under the Act, Code § 65.2-201(B), and deputies exercised such 

powers and duties as delegated by the commission. Code 

§ 65.2-203(A).2 

The commission explained the need to delegate deputy 

commissioners to sit with members because of the expanding work 

of the commission. The volume of cases, together with their 

increasing complexity and length, had increased the demands on 

the commission while the need for timely resolution of the cases 

had remained constant. In addition to its adjudicatory 

responsibilities, the commission noted that it had 

responsibility for administering the Act and setting policy. 

The employer argues Code § 65.2-7053 limits the general 

powers of the commission to delegate duties to deputies. A 

 2

 Code § 65.2-203. Powers and duties of 

 deputy commissioners and bailiffs. 

A. Deputy commissioners shall have the 

power to subpoena witnesses, administer 

oaths, take testimony and hear the parties 

at issue and their representatives and 

witnesses, decide the issues in a summary 

manner, and make an award carrying out the 

decision. Deputies may exercise other 

powers and perform any duties of the 

Commission delegated to them by the 

Commission. 

3

 Code § 65.2-705. Review of award; 

 rehearing. 

A. If an application for review is 

made to the Commission within twenty days 

after receipt of notice of such award to be 

sent as provided in subsection A of 

§ 65.2-704, the full Commission, except as 

provided in subsection B of § 65.2-704 and 

if the first hearing was not held before the 

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deputy commissioner can sit in place of a commissioner but only 

when the commission reviews a case by ore tenus hearing of the 

parties, their representatives, and witnesses. The employer 

contends a deputy commissioner may not sit when the review is a 

review of the record without an appearance by the parties, 

representatives, and witnesses. 

The employer argues Code § 65.2-705(A) mandates a review by 

the full commission, the three members acting jointly, with only 

one exception. That exception is created by the phrase "to hear 

a review" in Code § 65.2-704(B), which is incorporated by 

reference. Code § 65.2-705(A) authorizes two methods for 

review: "review the evidence," and "hear the parties at issue, 

their representatives, and witnesses." The employer contends 

the phrase "to hear a review" is a specific reference to the 

second type of review and thus limits the exception to a review 

of that sort. Thus, the employer concludes the chairman can 

appoint a deputy only when the commission hears the parties at 

issue. 

 

full Commission, shall review the evidence 

or, if deemed advisable, as soon as 

practicable, hear the parties at issue, 

their representatives, and witnesses. The 

Commission shall make an award which, 

together with a statement of the findings of 

fact, rulings of law, and other matters 

pertinent to the questions at issue, shall 

be filed with the record of the proceedings. 

A copy of the award shall be sent 

immediately to the parties at issue. 

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Chapter 2 of the Workers' Compensation Act formulates the 

commission and defines its powers and duties. It gives the 

three members of the commission joint or collective 

responsibility for administering the Act and adjudicating the 

issues and controversies arising from it. Code § 65.2-201(A). 

It gives the commission corporate authority to delegate powers 

and duties to deputies to carry out its responsibilities. Code 

§ 65.2-203(A). The commission acted under this authority when 

it appointed a deputy to sit with two members of the commission 

to review the termination of the award in this case. 

Chapter 7 of the Act, entitled "Procedure in Connection 

with Awards," outlines the procedures for hearing parties at 

issue. It permits the full commission, a member, or a deputy to 

make an initial award. Code § 65.2-704(B).4 However, it forbids 

 4

 Code § 65.2-704. Hearing; award or 

 opinion by Commission. 

A. The Commission or any of its 

members or deputies shall hear the parties 

at issue, their representatives, and 

witnesses; shall decide the issues in a 

summary manner; and shall make an award or 

opinion carrying out the decision. A copy 

of the award or opinion shall be sent 

immediately to the parties at issue by 

registered or certified mail. 

B. Any member of the Commission who 

hears the parties at issue and makes an 

award under the provisions of subsection A 

of this section shall not participate in a 

rehearing and review of such award provided 

under § 65.2-705. When a member is absent 

or is prohibited by the provisions of this 

subsection from sitting with the full 

Commission to hear a review, the Chairman 

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an individual member, who made an award, to sit in review of 

that award. When that occurs, the statute authorizes the 

chairman to appoint a deputy to sit in place of the member 

disqualified. The provision also authorizes the chairman to 

appoint a deputy to sit in review if a member is absent. 

Chapter 7 also outlines the procedure for reviewing an 

award. It directs the full commission to hear appeals. Code 

§ 65.2-705(A). It contemplates a review of the evidence 

presented to the first ore tenus hearing or a review by a new 

ore tenus hearing of the parties, their representatives, and 

witnesses. The commission has discretion to chose which method 

to use; it shall "review the evidence or, if deemed advisable, 

. . . hear the parties at issue." Code § 65.2-705(A). 

The procedural provisions of Chapter 7 do not limit the 

powers granted to the full commission in Chapter 2. They 

provide the means to constitute a three-person review body when 

the commission could not act because the full complement of 

three members did not exist. The procedures fill a void when 

the commission would not be able to exercise its Chapter 2 

powers. In one case, the full commission did not exist because 

of absence, in the other because of disqualification. Code 

§ 65.2-704(B) speaks to the chairman's authority. It empowers 

the chairman, individually, to name a deputy to act with the two 

 

shall appoint one of the deputies to sit 

with the other Commission members. 

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members who are present and qualified. In granting the chairman 

authority to act when the full commission would not be 

available, the statute does not thereby limit the authority of 

the full commission to act in other situations. 

 "It is a well settled principle of law that where two 

statutes are in apparent conflict they should be so construed, 

if reasonably possible, so as to allow both to stand and to give 

force and effect to each." Kirkpatrick v. Board Of Supervisors, 

146 Va. 113, 125, 136 S.E. 186, 190 (1926) (citation omitted). 

"The doctrine that a special act should be construed as an 

exception to the general law is not to be invoked unless the two 

acts cannot be harmonized or reconciled in any other way." Id. 

"Where two provisions are in potential conflict, it is this 

Court's duty to construe those provisions in a manner which 

would give full force and effect to both provisions." Cooper v. 

Occoquan Land Dev. Corp., 8 Va. App. 1, 6, 377 S.E.2d 631, 633 

(1989) (citation omitted), rev'd on other grounds, 239 Va. 363, 

389 S.E.2d 464 (1990). "It is a well established rule of 

construction that full force and effect must be given to each 

provision of statutory law." City of Richmond v. County Board 

of Supervisors, 199 Va. 679, 685, 101 S.E.2d 641, 646 (1958). 

There is no good reason to interpret the statute to permit 

the chairman to appoint a deputy for the most complete and 

formal type of review but to prohibit appointment for the less 

involved, less intricate, review on the record. Similarly, 

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there is no reason for the most involved review to lack an 

employer representative if fairness demands such representation 

and it is the reason for requiring review by members only.5 

Even if the phrase "to hear a review" is given the meaning 

the employer urges, the statute would limit the chairman only 

when faced with disqualification of a member who made the 

initial award. As the phrase "to hear a review" appears in Code 

§ 65.2-704(B), it does not modify both conditions under which 

the chairman can act: a member being absent or being 

prohibited. It does not apply to appointments of deputies when 

a member is absent. The phrase "to hear a review" appears in 

the prepositional phrase that modifies the passive verb "is 

prohibited." The phrase does not modify the adjective "absent" 

and accordingly cannot restrict its meaning. The chairman can 

appoint a deputy for either type of review when absence creates 

the need. 

The phrase "to hear a review" as employed in Code 

§ 65.2-704(B), refers to both methods of review, whether by 

review of the evidence in the record or by physical appearance 

before an ore tenus hearing by the tribunal. The verb "to hear" 

 5

 The commission noted that Code § 65.2-200(D) requires the 

commission to consist of employee and employer representatives, 

but the commissioners only act in their representative capacity 

when establishing policy. When acting in an adjudicatory 

capacity, the commission members must be fair and impartial. 

They are subject to Canon 3 of the Canons of Judicial Conduct 

and the Judicial Inquiry and Review Commission. Code 

§ 2.1-37.1. 

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employs the same meaning used by the phrase "hearing in equity": 

to adjudicate, to decide, or to examine judicially. It is not 

used in the sense of perceiving by ear. See Gills v. Gills, 126 

Va. 526, 541, 101 S.E. 900, 904 (1920). 

The employer further maintains that even if a deputy 

properly sat in this case, the commission acted improperly 

because it provided no notice of the substitution or opportunity 

to object. The employer argues the commission "overstepped its 

statutory bounds under the framework established by the General 

Assembly." There is no language in the statute requiring notice 

to the parties or a hearing before the chairman appoints a 

deputy to act for an absent commissioner. Code § 65.2-704(B). 

 Lastly, we consider the commission's decision that the 

employer failed to prove the employee's current condition was 

unrelated to the work accident. "Where . . . [a] causal 

connection between an industrial accident and disability has 

been established by the entry of an award, an employer has a 

right to apply for termination of benefits upon an allegation 

that the effects of the injury have fully dissipated and the 

disability is the result of another cause." Celanese Fibers Co. 

v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985). The 

employer must prove the employee's current disability does not 

result from the industrial accident by a preponderance of the 

evidence. Rossello v. K-Mart Corp., 15 Va. App. 333, 335, 423 

S.E.2d 214, 216 (1992). Causation is usually proven by medical 

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evidence. See Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 570, 

159 S.E.2d 633, 635 (1968). 

 Shortly after the employee's fall, he saw a neurologist 

because of headaches. The neurologist diagnosed a 

post-traumatic soft-tissue mass causing obstructive 

hydrocephalus and referred the employee to Dr. John Jane, a 

neurosurgeon. Dr. Jane inserted a shunt to allow drainage and 

planned to remove the tumor later. The employee had continuing 

complications and required surgery to relieve pressure from 

subdural hematomas. Dr. Jane performed those procedures and 

concluded the tumor, not the trauma from the fall, caused the 

hydrocephalus and the subdural hematoma. Dr. Jane was not sure 

when the tumor developed but felt it more likely that the tumor 

did not pre-exist the trauma. The trauma brought on the 

symptoms. 

 In January 1999, the employee sought a second opinion from 

Dr. William C. Broaddus, also a neurosurgeon. The doctor 

initially agreed with Dr. Jane's diagnosis, but after following 

the employee for eight months, he changed his opinion. Dr. 

Broaddus felt either the mass was not a tumor or it could have 

existed for many years without posing a problem. Dr. Broaddus 

concluded the fall caused the hydrocephalus because the employee 

was healthy before the fall, the mass failed to grow in size, 

the biopsy of the mass was inconclusive, and the ventricles had 

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returned to normal. He believed the mass did not cause the 

hydrocephalus though it may have pre-existed the fall. 

 The commission evaluated the conflicting medical evidence 

and concluded that Dr. Jane's opinions and testimony were 

internally inconsistent and "insufficient to prove the absence 

of a continuing causal relationship between the work accident 

and the claimant's present disability." It concluded the 

claimant's "work accident accelerated the need for the surgical 

condition of the hydrocephalus, and that the employer is 

responsible for the side effects of this surgery." Olsten v. 

Leftwich, 230 Va. 317, 319-20, 336 S.E.2d 893, 895 (1985); Dan 

River, Inc. v. Turner, 3 Va. App. 592, 596, 352 S.E.2d 18, 20 

(1987) (industrial accident that accelerates or aggravates a 

pre-existing condition is compensable). 

The commission resolves conflicts in the medical evidence, 

and its decision when based upon credible evidence is binding on 

this Court. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 

435, 439, 339 S.E.2d 570, 572 (1986). A determination of legal 

causation is a factual finding that will not be disturbed on 

appeal when it is supported by credible evidence. 

Accordingly, we affirm the decision of the commission. 

 Affirmed.

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