COURT OF APPEALS OF VIRGINIA 

Present: Judge Bray, Senior Judges Duff and Overton 

Argued at Alexandria, Virginia 

QUALITY INN EXECUTIVE AND 

 HIGHLANDS INSURANCE GROUP, 

 F/K/A VIK BROTHERS INSURANCE 

 GROUP/LMI INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1593-98-4 JUDGE NELSON T. OVERTON 

 JUNE 15, 1999 

ZOILA L. UMANA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Tenley A. Carroll-Seli (Pierce & Howard, 

P.C., on brief), for appellants. 

 William S. Sands, Jr. (Duncan & Hopkins, 

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

 Quality Inn Executive and its insurer (hereinafter referred 

to as "employer") appeal a decision of the Workers' Compensation 

Commission ("commission") finding it responsible for the cost of 

cervical disc surgery recommended by Dr. Donald Hope for Zoila L. 

Umana ("claimant"). Employer contends that the commission erred 

in finding that claimant proved that (1) her cervical disc 

condition was causally related to her compensable January 16, 1995 

injury by accident, and (2) the proposed cervical disc surgery 

constitutes necessary treatment of her compensable right shoulder 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
injury. For the reasons that follow, we affirm the commission's 

decision. 

 On appeal, we view the evidence 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). 

Factual findings made by the commission will be upheld on appeal 

if supported by credible evidence. See James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

"'However, the question of whether the disputed medical treatment 

was necessary within the meaning of Code § 65.2-603 is a mixed 

question of law and fact.' Accordingly, the commission's 

conclusions as to the necessity of the disputed medical treatment 

are not binding upon this Court." Papco Oil Co. v. Farr, 26 Va. 

App. 66, 73-74, 492 S.E.2d 858, 861 (1997) (quoting Lynchburg 

Foundry Co. v. Goad, 15 Va. App. 710, 712-13, 427 S.E.2d 215, 217 

(1993)). 

 On January 16, 1995, claimant suffered a work-related 

accident wherein she sustained a compensable right shoulder 

injury. The parties executed a Memorandum of Agreement ("MOA") 

specifying that claimant injured her right shoulder as a result 

of the accident. The commission subsequently entered an award 

of benefits based on the MOA. 

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 Claimant began treatment with Dr. P.M. Palumbo, Jr. on 

January 23, 1995. At that time, Dr. Palumbo noted complaints of 

right shoulder, arm, and hand pain. Between February 1995 and 
the beginning of April 1995, claimant continued under Dr. 

Palumbo's care, receiving physical therapy and injections, but 

her right shoulder and arm pain continued. On April 4, 1995, 

Dr. Palumbo recommended that claimant undergo arthroscopic 

debridement with subacromial decompression if she failed to 

improve. On May 16, 1995, Dr. Palumbo noted that claimant 

continued to have pain in her right shoulder and arm and that 

her hand was numb. He also noted that she had pain in the right 

side of her neck. 

 After May 16, 1995 up through July 5, 1995, claimant 

continued to intermittently complain to Dr. Palumbo of hand, 

neck and shoulder pain. On July 5, 1995, Dr. Palumbo operated 

on claimant's right shoulder. Claimant reported some relief 

after the surgery, but she continued to treat with Dr. Palumbo 

for right shoulder, back and arm pain. 

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 After a July 2, 1996 office visit wherein claimant 

complained of constant pain in her shoulder with radiation down 

her upper arm and occasional hand numbness, Dr. Palumbo ordered 

that she undergo an MRI of her cervical spine. That MRI 

revealed significant degenerative disc disease in claimant's 

cervical spine at multiple levels, along with a left-sided disc 

herniation at the C6-C7 level. On July 31, 1996, Dr. Palumbo 

noted claimant's continuing complaints of right shoulder and 

neck pain. Dr. Palumbo noted that claimant "may well, indeed, 

be suffering from symptoms of a C6-7 nerve root irritation as 
well as a rotator cuff tendinitis." As a result of these 

findings, Dr. Palumbo referred claimant to Dr. Hope, a 

neurosurgeon. 

 On August 29, 1996, Dr. Hope examined claimant and agreed 

that she suffered from cervical disc disease. In his August 29, 

1996 office notes, Dr. Hope noted that claimant's main complaint 

was neck pain. He also noted that claimant had undergone 

surgery for her shoulder from Dr. Palumbo, but that this pain 

sounded "more radicular than it does localized to the shoulder." 

Dr. Hope recommended that claimant undergo discectomy and fusion 

at C6-C7. On October 10, 1996, Dr. Hope opined that the surgery 

for claimant's cervical disc condition "stems from her 

work-related injury of approximately one year ago." 

 In a March 13, 1997 letter report, Dr. Palumbo wrote that 

claimant as of her last visit had "marked tightness in the right 

upper trapezius with a trigger area at the superior angle of the 

scapula." He also wrote that he told claimant "that the 

upcoming [disc] surgery should improve her right upper trapezius 

pain that it was unclear that the surgery would improve her 

rotator cuff tenderness." 

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 In his March 17, 1997 deposition, Dr. Palumbo testified 

that claimant's cervical disc condition occurred at the time of 

her compensable accident, but that it was a separate and 

distinct injury from her right shoulder injury. Dr. Palumbo 

testified that claimant's right rotator cuff problem and severe 
shoulder complaints masked her cervical disc condition until at 

least October 1995. He stated that it is very difficult to 

differentiate "pain in the shoulder from the shoulder itself or 

pain in the shoulder from a cervical problem." 

 In an April 8, 1997 letter to claimant's counsel, Dr. 

Palumbo opined that "[t]his patient's clinical picture is 

further complicated by her shoulder injury, which is not 

directly related to her cervical disc condition, but is a 

separate condition sustained in the same accident." 

 Based on this evidence, the commission found that 

claimant's cervical disc condition constituted a separate and 

distinct injury from the right shoulder injury, which was the 

only specific injury covered by the MOA and the commission's 

December 1995 award. Because claimant did not file a timely 

claim pursuant to Code § 65.2-601 with respect to the cervical 

disc injury, the commission ruled that a claim for the cervical 

injury, in and of itself, was barred by the applicable statute 

of limitations under the Supreme Court's ruling in Shawley v. 

Shea-Ball Construction Co., 216 Va. 442, 219 S.E.2d 849 (1975). 

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 The commission then ruled that, based on the opinions of 

Drs. Palumbo and Hope, claimant's cervical disc condition was 

causally related to the compensable accident. The commission 

further found that "treatment for the claimant's cervical 

condition is necessary treatment related to the compensable 

accident to the extent that it is necessary to treat symptoms 
related to the shoulder injury." Thus, the commission held that 

because the proposed cervical disc surgery was necessary to 

treat the compensable right shoulder injury, the claim for that 

surgery was not time-barred and employer was responsible for its 

cost. 

 On appeal, claimant does not dispute that the holding in 

Shawley applied to the cervical disc condition to render it a 

separate and distinct injury for which she failed to file a 

timely claim pursuant to Code § 65.2-601. Therefore, that 

finding is binding upon us on appeal. In addition, we are bound 

by the commission's holding that claimant's cervical disc injury 

resulted from the January 16, 1995 accident because that finding 

is supported by credible evidence, including the opinions of 

Drs. Palumbo and Hope. 

 The issue that remains is whether there is credible 

evidence to support the commission's finding that employer is 

liable for the cost of the proposed cervical disc surgery 

because that surgery is necessary in order to treat the symptoms 

of claimant's compensable right shoulder injury. 

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 The commission's finding that the cervical disc surgery 

recommended by Dr. Hope was necessary in order to successfully 

treat the symptoms causally related to claimant's compensable 

right shoulder injury is supported by credible medical evidence, 

including the medical records of Drs. Hope and Palumbo and Dr. 

Palumbo's deposition testimony. Dr. Hope opined that the disc 
surgery "stems" from the work injury. Based upon that opinion, 

the commission could reasonably infer that the disc surgery was 

necessary to treat the shoulder injury. In addition, based upon 

Dr. Palumbo's testimony that it is difficult for him to separate 

claimant's shoulder complaints from her disc symptoms and his 

March 13, 1997 letter in which he concluded that the disc 

surgery should improve claimant's right upper trapezius pain and 

might improve her rotator cuff tenderness, the commission could 

reasonably conclude that the disc surgery was necessary to treat 

the shoulder injury, as well as the disc condition. "Where 

reasonable inferences may be drawn from the evidence in support 

of the commission's factual findings, they will not be disturbed 

by this Court on appeal." Hawks v. Henrico Co. Sch. Bd., 7 Va. 

App. 398, 404, 374 S.E.2d 695, 698 (1988). 

 Accordingly, we affirm the commission's findings that 

claimant's cervical disc condition occurred as a result of the 

compensable injury by accident and that claimant failed to file 

a timely claim with respect to the disc injury. In addition, we 

affirm the commission's finding that employer is responsible for 

the cost of the cervical disc surgery proposed by Dr. Hope 

because it constitutes necessary treatment of claimant's 

compensable right shoulder injury. 

 Affirmed.

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