COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

PHILIP MORRIS USA and 

 TWIN CITY FIRE INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 0832-96-2 JUDGE SAM W. COLEMAN III 

 JANUARY 21, 1997 

CARLA RENE MARSHALL 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 J. Mark DeBord (Hunton & Williams, on 

briefs), for appellant. 

 Louis D. Snesil (Laura L. Geller; McDonald & 

Snesil, on brief), for appellee. 

 Philip Morris USA and Twin City Fire Insurance Company, the 

employer, appeal the Workers' Compensation Commission's award to 

Carla Rene Marshall, the claimant, of temporary total and 

permanent partial disability benefits based upon her change in 

condition application pursuant to Code § 65.2-708. Philip Morris 

contends that the commission erred by (1) revisiting and 

reconsidering its November 1992 award and agreed statement of 

fact holding that the claimant was not disabled and could return 

to work in September 1992, (2) reversing the deputy 

commissioner's finding that the claimant had failed to meet her 

burden of proof that she was disabled as a result of her injury, 

(3) reversing the deputy commissioner's determination that the 

claimant was not entitled to permanent partial disability 

 

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

designated for publication. 
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benefits, and (4) awarding benefits after finding that the 

claimant abandoned her designated treating physician. We hold 

that the November 1992 agreed statement of fact and award finding 

that the claimant could return to her pre-injury employment did 

not preclude her from claiming and proving a change of condition. 

 We further hold that the evidence is sufficient to support the 

commission's finding of a change in condition and that the 

claimant was disabled and entitled to temporary total and 

permanent partial disability benefits. Accordingly, we affirm 

the commission's decision. 

 On August 28, 1992, the claimant, who worked as a press 

operator, was injured when the press fell on her right hand. The 

employer accepted the injury as compensable, and the parties 

entered into a Memorandum of Agreement for payment of temporary 

total disability compensation beginning September 5, 1992. In 

the Agreement, the parties identified the injury as a "contusion 

to finger." The parties then executed an Agreed Statement of 

Fact in which the claimant stated that she was able to return to 

her pre-injury work on September 8, 1992. The commission 

approved the Memorandum of Agreement and entered an award 

granting temporary total disability benefits from September 5, 

1992 through September 7, 1992. Neither party appealed the 

award. 

 On July 13, 1994, the claimant filed an application alleging 

a change in condition and requested both temporary total and 
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permanent partial disability benefits. At the hearing, the 

employer defended on the grounds that the evidence showed neither 

a temporary total disability nor a permanent partial disability 

and that the claimant had abandoned her treating physician which 

disqualified her for benefits. 

 The evidence showed that immediately after the accident the 

claimant saw Dr. Claiborne Irby who diagnosed her injury as a 

contusion of the right hand. After Dr. Irby reviewed the 

claimant's job description and talked with her, Dr. Irby released 

the claimant to go back to work on September 7, 1992. 

Dissatisfied with Dr. Irby's treatment and evaluation, the 

claimant requested that Philip Morris refer her to another 

doctor, and she was referred to Dr. Stephen Leibovic, who saw the 

claimant on September 25, 1992. Dr. Leibovic found that the 

claimant had a positive Tinel's sign in her right forearm that 

was absent in the left. Dr. Leibovic's office notes stated: 

 I believe that Ms. Marshall has mild carpal 

tunnel syndrome bilaterally, the right 

somewhat worse than the left. In fact, 

probably what happened is that she may have 

had predisposition to this condition, as 

indicated by the mild involvement on the 

left, and the injury may have exacerbated it. 

Dr. Leibovic was of the opinion that the claimant's carpal tunnel 

syndrome was related to her accidental injury, but that she was 

not disabled from performing her pre-injury occupation. However, 

he did impose a zero to fifty pound lifting restriction and 

advised against repetitive movements. 
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 In June 1994, the claimant saw Dr. Charles Bonner to obtain 

an evaluation of permanent impairment. Dr. Bonner's report 

stated: 

 Based on the patient's complaint of pain and 

discomfort in the upper extremity associated 

with the history of decreased activities of 

daily living and avocational activities and 

sleep and on the review of medical records 

from Dr. Leibovic documenting carpal tunnel 

syndrome it is my conclusion this patient has 

a 15% permanent partial impairment of the 

upper extremity due to the traumatic carpal 

tunnel syndrome. 

In a letter to claimant's counsel on May 31, 1995, Dr. Bonner 

stated that the claimant's carpal tunnel syndrome was caused by 

the traumatic injury on August 28, 1992. 

 At the deputy commissioner's hearing, the claimant testified 

that after the accident, she went to Philip Morris' medical 

department and, without being offered a panel of physicians, she 

was referred to Dr. Irby. After seeing Dr. Irby, she requested a 

second opinion and the employer sent her to Dr. Leibovic, whom 

she saw one time. The claimant testified that she did not see 

Dr. Leibovic again because she was told by Philip Morris' 

director of occupational health services, Dr. Constance Hanna, 

that Philip Morris would not pay for further treatment by Dr. 

Leibovic. Dr. Hanna testified by deposition that the claimant 

was offered a panel of physicians by Philip Morris' nurse and 

that the claimant chose Dr. Irby. Dr. Hanna also testified that 

she never told the claimant that Philip Morris would not pay her 

workers' compensation benefits. 
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 The claimant testified that she returned to work on 

September 8, 1992, but, after attempting to do so, was not able 

to perform her job duties due to her injury. She stated that she 

could only use one of her hands and that she could not keep up 

with her work so her supervisor, 

 would put me in a room by myself and make me 

stay in that room during the whole entire 

shift. Sometimes they would come in and make 

me go back out on the floor to try to do the 

job, and then when I couldn't do it they 

would put me back in the room again, and they 

would make me stay in the room during the 

whole entire shift, the office. 

Philip Morris discharged the claimant in November 1992 because, 

according to the claimant, "they said they didn't have any work 

for me to do, they didn't have a job for me." The employer 

presented no evidence concerning the claimant's discharge. 

 The deputy commissioner found that the claimant failed to 

prove a change in condition and denied the claims for temporary 

total and permanent partial disability. Specifically, the deputy 

held that the claimant did not prove that her disability was 

causally related to her accidental injury, or that she had 

reached maximum medical improvement, or that she had a permanent 

disability. The deputy based his holding, in part, upon the 

factual findings that the claimant failed to prove her light duty 

restrictions prevented her from doing her pre-injury work, that 

Dr. Leibovic's report was "conflicting and ambiguous," and that 

Dr. Bonner failed to explain a basis for his opinion that the 

carpal tunnel syndrome was traumatic in origin. Thus, the 
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claimant failed to prove a causal relation between her disability 

and the accidental injury. Furthermore, the deputy held that Dr. 

Leibovic was the claimant's treating physician and that treatment 

by Dr. Bonner was unauthorized. 

 The full commission reversed the deputy commissioner's 

decision and awarded benefits based upon a finding that the 

claimant proved a change in condition. The commission found 

that, due to the claimant's traumatic carpal tunnel syndrome, she 

was unable to perform her pre-injury job and that her attempt and 

subsequent inability to do the work were better evidence of her 

disability than the medical opinions stating that she could 

return to work. The commission also held that the claimant was 

entitled to permanent partial disability based upon Dr. Bonner's 

finding that she had a 15% permanent disability in her right hand 

as a result of carpal tunnel syndrome caused by her August 28, 

1992 injury by accident. Although the claimant was only 

partially disabled, the commission held that she was entitled to 

temporary total disability benefits because as a partially 

disabled employee, she had been terminated and had made a 

reasonable, but unsuccessful, effort to market her residual 

capacity. 

 As to the employer's responsibility for claimant's medical 

treatment between September 1992 and June 1994, the commission 

found that Philip Morris told the claimant they would no longer 

pay for her to see a doctor. The commission found that the 
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claimant's testimony on this issue was unrebutted. However, the 

record reflects that, in Dr. Hanna's deposition, she denied 

making this statement to the claimant. Thus, the evidence to 

support the factual finding was not unrebutted. Additionally, 

the commission found that the claimant's testimony that she was 

not offered a panel of physicians was unrebutted. Again, the 

record shows that Dr. Hanna, based upon her review of claimant's 

medical records, testified that the claimant had been offered a 

panel of physicians by Philip Morris' nurse, and the claimant 

chose Dr. Irby. The employer urges this Court to reverse the 

commission's decision based, in part, on the commission's 

erroneous finding that certain facts were unrebutted. Although 

the basis for these factual findings may have been erroneous, 

these facts have no relevance to the questions presented, namely 

whether the claimant proved a change in condition or whether the 

claimant abandoned her medical treatment. 

NOVEMBER 1992 AWARD

 The employer contends that the Memorandum of Agreement, 

Agreed Statement of Fact, and the November 1992 award precluded 

the commission from reconsidering and deciding whether the 

claimant was able to perform her pre-injury work. The employer 

argues that the claimant agreed and the award found that the 

claimant could return to her pre-injury work in September 1992 

and that, other than the claimant changing her mind, no medical 

evidence proved a change of condition. The employer also argues 
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that the prior award and underlying facts which found that 

claimant could return to her pre-injury employment could not be 

reviewed except on the grounds of fraud or mutual mistake. 

 "The commission's approval of a memorandum of agreement is 

binding, and 'an award of compensation entered upon such 

agreement is as enforceable as an award entered in a contested 

proceeding.'" Butler v. City of Virginia Beach, 22 Va. App. 601, 

604, 471 S.E.2d 830, 832 (1996) (quoting Hartford Fire Ins. Co. 

v. Tucker, 3 Va. App. 116, 121, 348 S.E.2d 416, 419 (1986)); see 

also Code §§ 65.2-701(A) and -706(A). "Absent clear and 

convincing evidence of fraud, misrepresentation, mutual mistake 

or imposition, the commission has no authority to vacate an award 

from which no party sought timely review." Butler, 22 Va. App. 

at 604, 471 S.E.2d at 832; accord K & L Trucking Co. v. Thurber, 

1 Va. App. 213, 337 S.E.2d 299 (1985). 

 However, pursuant to Code § 65.2-708, an award and whether a 

claimant is disabled are subject to review upon the application 

of either party or the commission alleging a change in condition. 

"An award based on a change in condition is different from the 

right to recover for the injury itself; a change in condition is 

remedial and enlarges or diminishes a former award to meet the 

circumstances of a particular case." Bartholow Drywall Co. v. 

Hill, 12 Va. App. 790, 793, 407 S.E.2d 1, 2-3 (1991). The 

statute defines a change in condition as "a change in physical 

condition of the employee as well as any change in the conditions 
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under which compensation was awarded, suspended, or terminated 

which would affect the right to, amount of, or duration of 

compensation." Code § 65.2-101. "These changes include 

'progression, deterioration, or aggravation of the compensable 

condition . . . appearance of new or more serious features [and] 

failure to recover within the time originally predicted . . . .'" 

Armstrong Furniture v. Elder, 4 Va. App. 238, 243, 356 S.E.2d 

614, 616 (1987) (quoting 3 A. Larson, The Law of Workmen's 

Compensation § 81.31(a) (1983)). When a change in condition is 

alleged and proven, the commission may make an award either 

"ending, diminishing, or increasing the compensation previously 

awarded . . . ." Code § 65.2-708. 

 In this case, the claimant requested a review of the 

November 1992 award alleging a change in her condition. Based on 

the Memorandum of Agreement, the claimant's original award was 

for an injury which was a contusion to the finger. Thereafter, 

she alleged a change in condition in that she was disabled due to 

traumatic carpal tunnel syndrome that was caused by her injury. 

Because the traumatic carpal tunnel syndrome developed as a "new 

and more serious feature" which caused the claimant not "to 

recover within the time originally predicted," the commission did 

not err in considering whether the claimant was able to do her 

pre-injury work due to traumatic carpal tunnel syndrome caused by 

the accidental injury after the November 1992 award. 

Furthermore, the commission's finding that the Agreed Statement 
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of Fact had no particular significance to whether the claimant 

thereafter was disabled is essentially correct. Based solely 

upon the contusion to the finger, the statement indicates that 

the claimant was able to return to her pre-injury work. Neither 

the Agreement, the Statement of Fact, nor the award contemplates 

that the claimant's injury or its consequences was anything other 

than a contusion to the finger. However, the claimant's change 

in condition application alleges, in effect, that when she 

attempted to return to work, she was disabled due to the 

traumatic carpal tunnel syndrome. 

CHANGE IN CONDITION

 "When an employee files an application for reinstatement of 

disability benefits, two questions arise: (1) has there been a 

change in the employee's capacity to work; (2) if so, is the 

change due to a condition causally connected with the injury 

originally compensated." King's Market v. Porter, 227 Va. 478, 

483, 317 S.E.2d 146, 148 (1984). "General principles of 

workman's compensation law provide that 'in an application for 

review of any award on the ground of change in condition, the 

burden is on the party alleging such change to prove his 

allegations by a preponderance of the evidence.'" Great Atl. & 

Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 

(1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. 

App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). The employer 

contends that the evidence presented by the claimant is 
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insufficient to meet her burden of proof because she did not show 

that her condition had changed from the time of the initial award 

and because all of the treating physicians, with the exception of 

Dr. Bonner, who expressed no opinion on the issue, stated that 

she could return to work. 

 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). 

Based upon our review of the record, we hold that there is 

sufficient credible evidence in the record to support the 

claimant's change in condition application. 

 After reviewing the records from Dr. Leibovic and examining 

the claimant, Dr. Bonner diagnosed the claimant's condition as 

traumatic carpal tunnel syndrome and opined that she has a 15% 

permanent partial disability due to the injury that she received 

on August 28, 1992. Dr. Bonner's letter dated May 31, 1995 

causally connects the claimant's carpal tunnel syndrome to her 

injury by accident, which was deemed compensable in the November 

1992 award. Dr. Bonner expressed no opinion on the claimant's 

ability to perform her pre-injury work. However, he did put the 

claimant on light duty restrictions which included no heavy 

lifting and no repetitive activities with her hands. 

 Drs. Irby, Leibovic, and Belle opined that the claimant 

would, at some point, recover from the contusion to her finger 

and be able to return to her pre-injury work. However, being 
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able to return to work "is not the standard for determining 

disability. The threshold test of compensability is whether the 

employee is 'able fully to perform the duties of his preinjury 

employment.'" Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 

326 S.E.2d 687, 690 (1985). The claimant testified that she did 

try to return to her pre-injury work, but was unable to perform 

the job. The disability related to the traumatic carpal tunnel 

syndrome, not to the contusion of the finger. The commission 

found that the claimant made a bona fide effort to return to 

work, but due to the carpal tunnel syndrome she was unable to do 

her job. Although Drs. Irby, Leibovic, and Belle opined that she 

could return to work, "[t]he fact that contrary evidence may be 

found in the record is of no consequence if credible evidence 

supports the commission's finding." Manassas Ice & Fuel Co. v. 

Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). The 

claimant's testimony regarding her inability to do the work and 

Dr. Bonner's diagnosis are credible evidence sufficient to 

support the commission's decision that the claimant was partially 

disabled as a result of traumatic carpal tunnel syndrome and that 

a change occurred in the claimant's condition. 

PERMANENT PARTIAL DISABILITY AND TEMPORARY TOTAL BENEFITS

 The employer contends that the commission erred in finding 

that the claimant suffered a permanent disability. However, Dr. 

Bonner's opinion that the claimant suffered from a 15% permanent 

partial disability as a result of the carpal tunnel syndrome is 
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sufficient credible evidence to support the commission's finding 

of permanent disability. In view of the fact that the claimant 

was partially disabled and discharged from her position, she is 

entitled to temporary total disability benefits if she made a 

reasonable effort to market her residual work capacity. See

Washington Metro. Area Transit Auth. v. Harrison, 228 Va. 598, 

601, 324 S.E.2d 654, 655-56 (1985); Pocahontas Fuel Co. v. 

Barbour, 201 Va. 682, 684, 112 S.E.2d 904, 906 (1960); Pocahontas 

Fuel Co. v. Agee, 201 Va. 678, 681, 112 S.E.2d 835, 838 (1960); 

Island Creek Coal Co. v. Fletcher, 201 Va. 645, 648, 112 S.E.2d 

833, 835 (1960). The commission found that the claimant made a 

reasonable effort to market her residual work capacity by 

contacting more than 100 potential employers between January 1993 

and June 1995 and by registering with the Virginia Employment 

Commission. On appeal, the employer does not challenge the 

commission's finding of reasonable marketing, therefore, we 

affirm the commission's decision on this issue. 

 ABANDONMENT

 The employer's final argument is that the claimant abandoned 

her treating physician and sought unauthorized medical treatment, 

which bars her from receiving disability benefits. Based upon 

the commission's findings that the claimant was not offered a 

panel of physicians and that the employer refused to pay for the 

claimant's medical treatment, the commission found that Dr. 

Belle, the claimant's personal physician whom she saw after the 
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employer refused to pay for continued care by Dr. Leibovic, was 

her treating physician. The employer argues that these findings 

were erroneous in that the commission purported to base its 

decision on unrebutted evidence. Regardless of the fact that the 

commission erred in not considering the rebuttal evidence and 

regardless of who was the claimant's treating physician, there is 

no evidence that the claimant unjustifiably refused the medical 

treatment of any doctor which would require a suspension of her 

benefits. 

 Code § 65.2-603(B) states in pertinent part: 

 The unjustified refusal of the employee to 

accept such medical service . . . when 

provided by the employer shall bar the 

employee from further compensation until such 

refusal ceases and no compensation shall at 

any time be paid for the period of suspension 

unless, in the opinion of the Commission, the 

circumstances justified the refusal. 

As we have previously stated, "[a]n unauthorized change in 

physicians . . . is not necessarily equivalent to a refusal of 

medical services under Code § [65.2-603(B)]." Davis v. Brown & 

Williamson Tobacco Co., 3 Va. App. 123, 127, 348 S.E.2d 420, 422 

(1986). In order to constitute a refusal of medical services, 

there must be some evidence that the claimant has "refused to 

undergo medical treatment or to participate in the plan of 

treatment recommended by the treating physician." Id. 

 In this case, there was no course of treatment recommended 

by any physician, regardless of who the actual treating physician 

was. The record shows that Dr. Leibovic instructed the claimant 
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to wear a splint and to avoid heavy lifting and repetitive 

motions. Dr. Belle prescribed a sling, Motrin for pain, and 

Valium to help the claimant rest. There is no evidence in the 

record that the claimant failed to follow the advice of either of 

doctor. Therefore, we cannot say that the claimant refused 

medical treatment which would require a suspension of her 

benefits. There was evidence that the claimant failed to keep 

three follow-up appointments with Dr. Leibovic. However, the 

evidence shows that he had released her to return to work, that 

these scheduled appointments were to follow her progress, and 

were not part of a continuing course of treatment which she 

abandoned. 

 For the foregoing reasons, we affirm the decision of the 

commission. 

Affirmed.