COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Frank and Clements 

BOBBY DERWIN GIBSON 

 MEMORANDUM OPINION*

v. Record No. 1484-01-3 PER CURIAM 

 OCTOBER 2, 2001 

BILL GATTON CHEVROLET CADILLAC ISUZU AND 

 CINCINNATI CASUALTY COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Terry G. Kilgore; Wolfe, Farmer, Williams & 

Rutherford, on brief), for appellant. 

 (Christen W. Burkholder; Christen W. 

Burkholder, P.C., on brief), for appellees. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

 Bobby Derwin Gibson (claimant) contends that the Workers' 

Compensation Commission erred in (1) finding that he 

unjustifiably refused selective employment on or about May 4, 

2000; (2) finding that his headaches were not causally related 

to his compensable cervical strain; and (3) considering the 

issue of causation when employer did not raise that issue before 

the deputy commissioner at the hearing. Upon reviewing the 

record and the briefs of the parties, we conclude that this 

appeal is without merit. Accordingly, we summarily affirm the 

commission's decision. See Rule 5A:27. 
I. 

 "General principles of workman's compensation law provide 

that '[i]n 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)). "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). 

 In ruling that employer proved that claimant unjustifiably 

refused selective employment and in terminating claimant's 

outstanding award effective May 9, 2000, the commission found as 

follows: 

Dr. [Matthew] Wood, the claimant's treating 

physician, is in the best position to 

determine his ability to return to light 

duty work on or about May 4, 2000. In 

reaching this conclusion, we note that [Dr. 

Wood] had access to all of the claimant's 

medical records, as well as the initial 

records concerning the history of the 

claimant's injury. [Dr. Wood] is therefore 

in a better position to determine the 

claimant's work ability than a psychologist 

who performed testing at the request of 

claimant's counsel after there was a release 

to regular work. We also note that the 

claimant testified to an inability to drive 

safely because of limited range of motion in 

his neck. This is contrary to the medical 

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reports. In addition the claimant testified 

to driving around town. As to the 

claimant's assertion that he could not work 

because of a warning on his medication, Dr. 

Wood who was the claimant's treating 

physician was in the best position to 

determine his medication needs and whether 

they prohibited his return to work. The 

doctor approved the light-duty driving job 

and also released him to work. 

 The commission's findings are supported by credible 

evidence, including the medical records and opinions of 

claimant's treating physician, Dr. Wood. "Medical evidence is 

not necessarily conclusive, but is subject to the commission's 

consideration and weighing." Hungerford Mechanical Corp. v. 

Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). As 

fact finder, the commission was entitled to weigh the medical 

evidence, to accept Dr. Wood's opinions, and to reject the 

contrary opinion of Dr. Timothy A. Urbin, a licensed 

psychologist. Dr. Urbin interviewed and tested claimant upon 

his counsel's request, was provided an inaccurate history of 

claimant's injury, and never indicated whether he was aware of 

claimant's previous testing or treatment by Dr. Wood and 

Dr. Douglas P. Williams, a neurologist. "Questions raised by 

conflicting medical opinions must be decided by the commission." 

Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 

231, 236 (1989). 

 Because the commission's findings are supported by credible 

evidence, they are binding and conclusive upon us. "The fact 

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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). 

II. and III. 

 With respect to the issue of the causation of claimant's 

headaches, the commission noted in a footnote to its opinion 

that "[t]he deputy commissioner noted that because the carrier 

did not raise the issue of causation, it would not be decided." 

Moreover, the commission recognized that the primary issue on 

review was whether the claimant refused light duty employment on 

or about May 4, 2000. In discussing claimant's headaches as 

they related to this issue, the commission noted the following: 

The record reflects that since the accident 

the claimant has reported problems with 

headaches. However, the record does not 

establish whether the headaches were the 

result of the cervical strain or an 

additional injury that occurred at the time 

of the accident. The Memorandum of 

Agreement only accepted a cervical strain. 

Dr. Wood, a neurosurgeon, who has treated 

the claimant since the time of the accident 

has not stated that the claimant cannot work 

because of the headaches. He in fact 

released the claimant to his pre-injury 

work. He has sought consultations from 

Dr. Williams concerning the claimant's 

headaches. Dr. Williams has indicated that 

the headaches may be refractory. 

Dr. Williams has made no statement 

concerning claimant's ability to work. 

 Nothing in this record indicates that the commission 

specifically addressed the issue of the causation of claimant's 

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headaches. Rather, the record shows that the commission 

discussed claimant's headaches in the context of determining 

whether the headaches had any bearing upon the issue of 

claimant's unjustified refusal of selective employment. 

Accordingly, we find no merit in the second and third questions 

presented by claimant on appeal. 

 For these reasons, we affirm the commission's decision. 

Affirmed.

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