COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Bray and Senior Judge Duff 

Argued at Alexandria, Virginia 

VERONICA HELEN THOMAS 

 OPINION BY 

v. Record No. 0018-96-4 JUDGE RICHARD S. BRAY 

 JULY 2, 1996 

NORDSTROM PENTAGON CITY/ 

 NORDSTROM, INC. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

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

for appellant. 

 Michael N. Salveson (Hunton & Williams, on 

brief), for appellee. 

 Veronica Helen Thomas (claimant) appeals a decision of the 

Virginia Workers' Compensation Commission (commission), 

complaining that the commission erroneously concluded that she 

(1) failed to "timely request" a review of the deputy 

commissioner's denial of her motion to dismiss the hearing 

applications of Nordstrom Pentagon City/Nordstrom, Inc. 

(employer), (2) was released to her pre-injury employment on 

November 30, 1992, and (3) neglected to report earnings which 

exceeded her pre-injury wage. Finding no error, we affirm the 

commission. 

 On June 26, 1990, claimant sustained employment-related 

injuries to her knees, hands, and back, and was awarded benefits 

from employer for the resulting disability. Beginning in 

December, 1992, employer filed several motions with the 

commission, each seeking suspension of the award, and attended by 
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applications for related hearings. The first, received by the 

commission December 24, 1992, alleged that claimant had been 

released to her pre-injury employment on November 30, 1992, and 

that any existing disability was not attributable to the 

industrial accident. A motion and application filed December 3, 

1993, asserted that claimant had "procured" the subject benefits 

through fraud and failed to report earnings in accordance with 

Code § 65.2-712. The third motion, received January 5, 1994, 

alleged that claimant had been released to pre-injury employment 

on December 9, 1993. 

 Before referring these motions to the hearing docket, the 

commission's Claims Division required employer to "pay 

compensation [for two periods] pursuant to the . . . award," in 

accordance with Rule 1.4(C).1

 Employer subsequently forwarded 

claimant a check for $5,896.42 on May 26, 1994, $68 less than the 

amount prescribed by the order. Nevertheless, the matters were 

all referred to the hearing docket on June 3, 1994, without 

objection from claimant. 

 In early September, 1994, claimant moved the commission to 

dismiss the pending motions pursuant to Rule 1.4(C), contending 

that employer had failed to fully satisfy the payment required by 

the commission. Shortly thereafter, employer paid claimant an 

additional $100 to resolve the insufficiency and, on September 

 1Rule 1.4(C) requires that "[c]ompensation . . . be paid 

through the date the application was filed," subject to certain 

inapplicable exceptions. 
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14, 1994, the deputy commissioner denied claimant's motion.2

 

Claimant did not request full commission review of this decision, 

but included the issue in her appeal to the commission of the 

deputy's later decision, which granted employer "all of the 

relief requested in its applications for hearing." On review, 

the commission concluded that the ruling on claimant's Rule 

1.4(C) motion to dismiss was res judicata and affirmed the 

deputy's decision on all issues. 

RES JUDICATA: RULE 1.6(A)

 "The commission has the power to make and enforce 'rules not 

inconsistent with [the Workers' Compensation] Act, for carrying 

out the provisions of this Act.'" Specialty Auto Body v. Cook, 

14 Va. App. 327, 330, 416 S.E.2d 233, 235 (1992) (citation 

omitted). "When a challenge is made to the commission's 

construction of its rules, 'our review is limited to a 

determination whether the commission's interpretation of its own 

rule was reasonable.'" Id. (citation omitted). The agency will 

be "accorded great deference" and its interpretation of its rules 

"will not be set aside unless arbitrary and capricious." 

Virginia Real Estate Bd. v. Clay, 9 Va. App. 152, 159, 384 S.E.2d 

622, 626 (1989), appeal dismissed, 398 S.E.2d 78 (Va. 1990). 

 

 2Employer subsequently filed two additional motions and 

applications for hearing, dated October 7, 1994, and November 4, 

1994, respectively, both alleging claimant's failure to report 

for independent medical examinations. All motions were 

consolidated for hearing before the deputy commissioner on March 

30, 1995. 
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 Rule 1.6(A) of the commission rules provides that "[a] 

request for review of a decision accepting or rejecting a change 

in condition claim or application shall be filed within 20 days 

from date of the decision. No oral argument is permitted." 

Here, claimant failed within the time allotted by Rule 1.6(A) to 

request a review of the deputy commissioner's initial ruling 

denying her motion to dismiss the applications. Accordingly, the 

commission concluded that the deputy commissioner's determination 

of the Rule 1.4(C) issue was res judicata. See K & L Trucking 

Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). 

 We find that the commission's application of Rule 1.6(A) was 

reasonable and consistent with provisions of the Act and, 

therefore, beyond our review.3 

RETURN TO PRE-INJURY EMPLOYMENT 

 Under familiar principles, we view the evidence in the light 

most favorable to the prevailing party, employer in this 

instance. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 

212, 390 S.E.2d 788, 788 (1990). "It lies within the 

commission's authority to determine the facts and the weight of 

the evidence, and its findings in that regard, when supported by 

credible evidence, will not be disturbed on appeal." Rose v. 

 

 3Contrary to claimant's assertions during oral argument, the 

commission's construction and application of Rule 1.6(A) would 

not require this Court to entertain appeals of such decisions as 

a "final award." See Code §§ 17-116.04, 65.2-706; Holly Farms 

Foods, Inc. v. Carter, 15 Va. App. 29, 34, 422 S.E.2d 165, 167 

(1992). 
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Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396 

S.E.2d 392, 395 (1990). "A question raised by conflicting 

medical opinion is a question of fact." Commonwealth v. Powell, 

2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). "The fact that 

there is contrary evidence in the record is of no consequence if 

there is credible evidence to support the commission's finding." 

Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 

32, 35 (1991). 

 Dr. Juan L. Jammes, a neurologist, evaluated claimant on 

November 30, 1992, and reported "no objective evidence of 

disability." Rather, he opined that claimant was "suffering from 

functional overlay." The commission found Dr. Jammes' report, 

considered with other medical evidence and observations of 

claimant "performing tasks . . . inconsistent with her claimed 

disability," "sufficient to prove that . . . claimant was 

released to return to her preinjury employment on November 30, 

1992," a decision clearly supported by credible evidence. 

EARNINGS 

 Code § 65.2-712 provides, in pertinent part, that "[s]o long 

as an employee receives payment of compensation . . . such 

employee shall have a duty immediately to disclose to the 

employer . . . any incarceration, return to employment or 

increase in his earnings." 

 It is uncontroverted that both before and after the accident 

claimant was a "distributor" of Herbalife products and became a 
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Herbalife "supervisor" in June, 1991. Her responsibilities 

included ordering, receiving, storing, selling, packaging, and 

delivering an array of Herbalife products. Claimant's tax 

returns indicated 1991 gross sales of $7,648.82, followed by 

substantial annual increases, rising to approximately $73,000 in 

1994. Although claimant's tax records and testimony reflected 

significantly less net income, the evidence indicated that she 

repeatedly represented to others that her net earnings ranged 

from $3,000 to $5,000 per month.4

 In assessing these conflicts 

in the record, the commission characterized claimant's evidence 

as "unpersuasive" and "[in]conclusive," concurred in the deputy's 

finding that claimant was "not credible," and concluded that 

claimant had earned a net income which exceeded her pre-injury 

average weekly wage. This factual finding is also well-supported 

by credible evidence and will not be disturbed on appeal. 

 Accordingly, we affirm the decision of the commission. 

 Affirmed.

 

 4Testimony established that claimant once proclaimed monthly 

earnings of $8,000 to $10,000 to an audience attending an 

Herbalife "seminar," leaving her "debt-free."