COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and Frank 

Argued at Richmond, Virginia 

CITY OF MARTINSVILLE WATER AND SEWER AND 

 VIRGINIA MUNICIPAL GROUP SELF-INSURANCE 

 ASSOCIATION 

 MEMORANDUM OPINION* BY 

v. Record No. 2753-98-2 JUDGE ROBERT P. FRANK 

 JULY 27, 1999 

TIMOTHY SCOTT TURNER 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Richard D. Lucas (T. Borden Ellis; Carter, 

Brown & Osborne, P.C., on briefs), for 

appellants. 

 Wesley G. Marshall for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

 City of Martinsville Water and Sewer and its insurer 

(appellant) assert that the Virginia Workers’ Compensation 

Commission erred in finding: 1) a causal relationship between 

the April 29, 1996 work-related injury and claimant’s back 

disability and treatment after October 8, 1996, 2) a causal 

relationship between the April 29, 1996 work-related accident 

and claimant’s neck disability and treatment, 3) that claimant’s 

treatment was reasonable and necessary, 4) that Dr. Joiner was 

not claimant’s only authorized treating physician, 5) that Dr. 

Knox, Dr. Mathern and Dr. Matthews were authorized treating 
physicians, and 6) that claimant did not unjustifiably refuse 

medical treatment. For the following reasons, we affirm the 

commission’s opinion dated October 29, 1998. 

I. BACKGROUND 

 The parties are familiar with the record, and this 

memorandum opinion recites only those facts necessary to the 

disposition of the issues before the Court. 

 On April 29, 1996, claimant strained his back while working 

in a manhole. He was manually forcing a rod into a clogged 

sewer line when he felt a “bad pop” in his back and a “shock” 

from the “top of [his] head to the bottom of [his] feet.” 

Co-workers of claimant assisted him out of the manhole. Then, 

claimant’s supervisor drove him to the emergency room where he 

was diagnosed with acute back strain and a possible herniated 

nucleus pulposus. 

 On May 1, 1996, claimant saw Dr. John Mahoney, an 

orthopedic surgeon, who noted that his examination of claimant 

indicated “pain across the lumbosacral junction with spasm.” 

Claimant testified that he told Dr. Mahoney that he was 

suffering from numbness in his left arm, but no record of arm 

numbness occurs in Dr. Mahoney’s notes. 

 Both the emergency room physician and Dr. Mahoney noted 

that claimant had a history of spondylolisthesis. It is well 

documented in the record that claimant suffered prior injuries 

- 2 -
to his back and had been diagnosed with spondylolisthesis as 

early as 1987. 

 Claimant underwent an MRI exam on May 3, 1996, which 

revealed Grade I spondylolisthesis at L5-S1, minimal disc 

protrusion at L3-4 and L4-5 with degenerative disc disease, and 

“findings suspicious for herniated nucleus pulposus.” 

 On May 7, 1996, Dr. Mahoney referred claimant to Dr. Eric 

Korsh, an orthopedic surgeon, because he felt that claimant 

should be “considered for surgical treatment.” Dr. Korsh first 

examined claimant on May 9, 1996. Dr. Korsh noted that 

claimant’s pain goes into “both buttocks and both legs,” “his 

testicles,” and “down to his hamstrings.” Dr. Korsh also 

reported claimant’s complaint of neck discomfort and numbness 

and tingling in the left arm. Dr. Korsh’s notes reflect Grade I 

spondylolisthesis, disk space narrowing at L5-S1, degenerative 

disc disease, and a central disk herniation. Dr. Korsh 

recommended an “intensive course of physical therapy.” Dr. 

Korsh concluded his report by writing, “Hopefully I can continue 

to treat him conservatively.” 

 Dr. Korsh’s office notes reflect that on May 15, 1996, 

claimant called with complaints of severe pain and numbness in 

his left arm. Claimant also complained of pain in his lower 

back, right leg and neck. Dr. Korsh wrote that he told claimant 

that he wanted to pursue a conservative course of treatment. 

Dr. Korsh ordered an MRI exam and x-rays of claimant’s neck. 

- 3 -
 The MRI exam of the cervical spine indicated a bulging disk 

at C4-5 and C5-6 and a herniation at C6-C7. Dr. Korsh decided 

to continue physical therapy. 

 The physical therapist’s report of June 7, 1996 indicated 

that claimant exhibited tenderness in his lower back and a 

decreased C-6 reflex on the left and reported “occasional left 

upper extremity pain.” The physical therapist planned to treat 

claimant with intermittent cervical traction and outpatient care 

using ultrasound, pain reducing modalities, and strengthening 

and conditioning programs for the neck, lower trunk and lower 

extremities. 

 On June 26, 1996, the physical therapist noted that while 

claimant reported reduced cervical pain and no upper extremity 

pain, he experienced “significant increases in his low back 

pain.” 

 On July 8, 1996, claimant reported increased lower back 

pain, aching in his bilateral extremities, testicular pain and 

“tightness” in his neck to the physical therapist. 

 Dr. Korsh reported on July 18, 1996 that he would continue 

to treat claimant with conservative measures. Dr. Korsh stated 

that he only would consider surgical intervention “if 

[claimant’s] pain progresses to a level where he could not 

tolerate it and he fails conservative management.” 

- 4 -
 On July 26, 1996, claimant reported to the physical 

therapist that he experienced loss of bladder control the 

previous day as well as neck stiffness and testicular pain. 

 On August 5, 1996, Dr. Ward W. Stevens, Jr., a 

neurosurgeon, examined claimant. Dr. Stevens’ diagnosis was 

“acute low back strain associated with spondylolisthesis.” Dr. 

Stevens recommended that claimant undergo a CT/Myelogram before 

considering a surgical approach and stated, “I would also 

recommend that Mr. Turner delay a surgical approach as long as 

he can with this type of diagnosis; and if he did undergo 

surgery, the procedure of choice would be a decompressive 

procedure and possible fusion.” 

 On August 26, 1996, claimant told Dr. Korsh that any pain 

relief he received from the physical therapy was temporary. Dr. 

Korsh reviewed claimant’s diskogram and noted that it showed 

“positive concordant pain, very severe, at L4-5 along with 

severe degenerative changes” and “concordant pain with 

significant degenerative changes” at L5-S1. The diskogram also 

showed spondylolisthesis and spondylolysis. Dr. Korsh indicated 

that physical therapy would be continued for two months and, 

then, additional options would be discussed. 

 Claimant reported to Dr. R. Blake Dennis, an orthopedic 

surgeon, on August 27, 1996 for a second opinion. Dr. Dennis’ 

diagnosis was “lumbar disc sprain with pre-existing isthmic 

developmental spondylolisthesis secondary to spondylolysis.” 

- 5 -
Dr. Dennis stated that he would be reluctant to consider surgery 

for claimant’s problem and felt that the success rate for such a 

procedure would be no better than twenty percent. 

 Over the next month, claimant continued to report to Dr. 

Korsh with “exquisite” and “excruciating” pain. Then, on 

October 7, 1996, claimant told Dr. Korsh that the pain was no 

longer tolerable and that he was getting worse every day. Dr. 

Korsh discussed surgery with claimant. On October 9, 1996, Dr. 

Korsh and Dr. Shumate performed a lumbar fusion at L4-5 and 

L5-S1. 

 On October 17, 1996, Dr. Korsh wrote that claimant was 

experiencing “post operative discomfort.” Dr. Korsh also noted 

that claimant continued to experience neck pain, but indicated 

that it would be addressed later. Claimant was to begin a 

three-month course of physical therapy. 

 On October 28, 1996, Dr. Korsh’s office note states that 

claimant is going to be permanently disabled from performing his 

job duties. 

 On December 3, 1996, claimant saw Dr. Korsh for “severe 

neck and right arm pain.” Dr. Korsh noted that claimant “has 

pain going from the neck to both shoulders to both arms, though 

the right is worse than the left.” Claimant reported “numbness 

and tingling in both arms.” Dr. Korsh advised claimant not to 

attempt aggressive measures unless the pain was such that he 

could not live with it. Claimant told Dr. Korsh that he could 

- 6 -
live with the pain and did not wish to undergo additional 

surgery. 

 On January 6, 1997, Dr. Korsh remarked that claimant’s 

cervical spine MRI showed a “small central C4-5 disc herniation 

with central right-sided C6-7 disc herniation which is much 

larger and appears to be causing pressure on the existing C7 

nerve root which does significantly correspond to this patient’s 

symptoms.” Dr. Korsh discussed surgery with claimant, but wrote 

that he would only consider surgery, “if [claimant] felt that he 

was not improving or in fact he was getting worse and could no 

longer tolerate his pain.” 

 On January 16, 1997, Dr. Korsh denied the request for a 

functional capacity evaluation by Melissa Boone, claimant’s 

nurse case manager, because claimant’s lumbar fusion was 

performed just three months prior and the problems with his neck 

were interfering with his rehabilitation progress. 

Additionally, Dr. Korsh noted that he told Ms. Boone that 

surgery might be required to correct claimant’s neck problems. 

 In Dr. Korsh’s February 3, 1997 letter to Dr. Mahoney, he 

stated, “Apparently [claimant] is having a problem with worker’s 

comp covering him for this injury which occurred immediately and 

concurrent with his low back problems.” 

 On February 24, 1997, Dr. Korsh wrote to Dr. Mahoney: 

Currently his major complaints revolve 

solely around his neck and right arm. 

Subsequently at this point, due to failed 

- 7 -
conservative measures, he has elected to 

proceed with surgical intervention. This 

will consist of an anterior cervical 

diskectomy and fusion at the C6-C7 level on 

2/26/97. 

 

Dr. Korsh performed the anterior cervical diskectomy on February 

26, 1997. 

 On March 31, 1997, Dr. Korsh met with claimant, and they 

discussed the onset of claimant’s back and neck problems. Dr. 

Korsh noted that claimant stated “unequivocally that the 

cervical and lumbar problems are at the exact same time.” 

 Dr. Korsh also met with Ms. Boone on March 31, 1997. In 

his written notes of the meeting, he recorded that Ms. Boone was 

informed that claimant’s lumbar and cervical problems “occurred 

at the same time and they occurred with his work related 

incident. They are absolutely connected and I explained that to 

Ms. Boone.” 

 On April 24, 1997, Dr. Korsh wrote to Ms. Boone pursuant to 

her request for additional information about claimant. As to 

the relationship between the neck and back problems, Dr. Korsh 

wrote: 

 Specifically Mr. Turner’s cervical 

complaints and surgical intervention is not 

at all related to his lumbar sprain. What 

it is related to is a work injury which 

occurred on 4/29/96. It just so happens 

that he injured his neck and his low back at 

the same time. As you know, there is no 

direct correlation between the neck and the 

low back, but what is correlated is the two 

injuries in the incident on 4/29/96 while he 

was at work. Since that point, he has had 

- 8 -
neck and low back complaints. He has had 

upper and lower extremity complaints and 

these are all directly related to the 

incident on 4/29/96. 

(Emphasis in original). 

 On June 2, 1997, Dr. Korsh met with Ms. Boone. Claimant 

was not present for the meeting. Dr. Korsh’s record of the 

meeting stated, “We have made the decision to send [claimant] to 

Dr. Murray Joiner for conservative management and more 

aggressive rehab.” 

 On June 9, 1997, claimant reported to Dr. Korsh that he had 

no neck pain but that he was experiencing some low back pain and 

pain in the left leg. Dr. Korsh noted that the cervical spine 

showed a “solid stable appearing fusion.” Dr. Korsh’s notes 

indicate that he informed claimant that he was closing his 

practice: 

 I told him I would make an appropriate 

referral to a surgeon or a rehab physician 

for continuation of care. I recommended 

that he see Dr. Murray Joiner for 

continuation of his treatment. The patient 

requested an appointment with Dr. Knox. I 

reiterated my recommendation to see Dr. 

Joiner, but I told him that if he felt like 

he wanted to see Dr. Knox I would make an 

appointment for him to see Dr. Knox. The 

patient will consider who he wishes to see 

for follow up and contact my office. 

 Claimant testified before the deputy commissioner on 

October 7, 1997 that Dr. Korsh told him about the decision by 

Ms. Boone and Dr. Korsh to refer claimant to Dr. Joiner. 

Claimant stated that he told Dr. Korsh that he would prefer to 

- 9 -
choose a new doctor from a panel of physicians. Dr. Korsh then 

mentioned a doctor in Danville, Dr. Hallett Mathews, Dr. Joiner 

and Dr. Cecil B. Knox. Claimant told Dr. Korsh that he would 

like to see Dr. Knox for pain control and Dr. Mathews should he 

require hardware removal. Claimant testified that Dr. Korsh 

arranged his appointment with Dr. Knox. 

 Dr. Korsh met with Ms. Boone on June 23, 1997. Dr. Korsh’s 

notes of the meeting reflect that he explained to Ms. Boone that 

he referred claimant to Dr. Joiner, but that claimant requested 

an evaluation with Dr. Knox. In the same note, Dr. Korsh wrote 

that Ms. Boone was informed that claimant knew Dr. Korsh’s 

referral was Dr. Joiner, but that Dr. Korsh told claimant that 

he could make an appointment with Dr. Knox. Dr. Knox examined 

claimant on October 1, 1997. 

 Dr. Joiner examined claimant on July 21, 1997. Dr. Joiner 

could not relate claimant’s cervical spine and neck pain to the 

work-related incident on April 29, 1996. Dr. Joiner noted that 

claimant should have reported the onset of symptoms in the neck 

immediately or within seventy-two hours of the injury. Dr. 

Joiner, therefore, could not relate the cervical fusion surgery 

to the work-related incident on April 29, 1996. 

 On July 21, 1997, Dr. Korsh wrote the following to Dr. 

Mathews: 

Timothy Turner is a patient of mine. He has 

suffered a workers [sic] compensation 

injury. He subsequently underwent a lumbar 

- 10 -
decompression stabilization as well as an 

anterior cervical diskectomy and fusion. 

As you are aware, I will be relocating my 

practice. Mr. Turner has requested a 

referral to you for follow up care. If you 

do have any questions regarding him please 

feel free to contact me. 

 Claimant was examined by Dr. Bruce Mathern, Dr. Mathews’ 

associate, on July 29, 1997. Dr. Mathern’s office note stated, 

“Mr. Turner is a very complex patient referred from the Roanoke 

area by both Dr. Korsh and Dr. Widmeyer.” Dr. Mathews examined 

claimant on August 13, 1997. 

 Appellant denied claimant’s claim and ceased payment of 

benefits to him in July 1997. 

 II. CAUSAL CONNECTION OF BACK DISABILITY AND TREATMENT 

 Appellant contends that claimant did not prove a causal 

connection between the April 29, 1996 workplace accident and his 

back disability and treatment after October 8, 1996. We reject 

that contention. 

 “‘Factual findings of the [Workers’ Compensation] 

Commission will be upheld on appeal if supported by credible 

evidence.’” Tumlin v. Goodyear Tire & Rubber Co., 18 Va. App. 

375, 378, 444 S.E.2d 22, 23 (1994) (quoting James v. Capitol 

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

(1989)). “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. 

- 11 -
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citing 

Capitol Steel Constr. Co., 8 Va. App. at 515, 382 S.E.2d at 

488). “In determining whether credible evidence exists, the 

appellate court does not retry the facts, reweigh the 

preponderance of the evidence, or make its own determination of 

the credibility of the witnesses.” Id. (citing Jules 

Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 69, 334 S.E.2d 

592, 595 (1985)). Causation is a factual finding that will not 

be disturbed on appeal if supported by credible evidence. See

C.D.S. Const. Services v. Petrock, 218 Va. 1064, 1070, 243 

S.E.2d 236, 240 (1978). “‘A question raised by conflicting 

medical opinion is a question of fact.’” Dan River, Inc. v. 

Turner, 3 Va. App. 592, 596, 352 S.E.2d 18, 20 (1987) (quoting 

Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 

(1986)). 

 The commission was presented with conflicting medical 

evidence as to the causation of the back disability and related 

treatment after October 8, 1996. Dr. Korsh, claimant’s 

authorized treating physician, opined that the back injury and 

treatment was causally related to the work-related incident on 

April 29, 1996. The commission placed great weight on the 

diagnosis and opinion of Dr. Korsh. We, therefore, find that 

there is credible evidence in the record to establish a causal 

connection between the accident on April 29, 1996 and claimant’s 

continued back disability and treatment.

- 12 -
 III. CAUSAL CONNECTION OF NECK INJURY 

 Appellant contends that claimant did not establish a causal 

connection between the April 29, 1996 workplace accident and the 

injury to his neck. We reject that contention. 

 Dr. Korsh repeatedly opined that claimant’s neck condition 

was related to the workplace injury that occurred on April 29, 

1996. Dr. Joiner, however, did not believe that the neck 

condition was causally related to the April 29, 1996 incident 

because claimant did not report neck pain within seventy-two 

hours. Additionally, there was evidence that claimant had been 

treated for neck problems prior to the occurrence of the 

workplace accident. The commission accepted Dr. Korsh’s opinion 

as to the relationship between claimant’s neck condition and the 

workplace accident. We find that there was credible evidence in 

the record to support the commission’s finding. 

IV. NECESSITY AND REASONABLENESS OF THE TREATMENT 

 Appellant contends that the commission erred in finding 

that claimant’s lumbar and cervical fusions were reasonable and 

necessary. We reject appellant’s position. 

 “‘[T]he 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.’” Papco Oil Co. v. Farr, 26 Va. App. 

66, 73, 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)). “Accordingly, the commission’s conclusions as to the 

- 13 -
necessity of the disputed medical treatment are not binding upon 

this Court.” Id. at 73-74, 492 S.E.2d at 861. However, “‘so 

long as a causal relationship between the industrial accident 

and the . . . [treatment rendered] is shown, the employer is 

financially responsible for the medical attention which the 

attending physician deems necessary.’” Id. at 74, 492 S.E.2d at 

861 (quoting Goad, 15 Va. App. at 714, 427 S.E.2d at 217-18).

 As discussed earlier, we believe that there is credible 

evidence to support the commission’s finding that there was a 

causal connection between the April 29, 1996 workplace accident 

and claimant’s back and neck injuries. Dr. Korsh, claimant’s 

treating physician, believed that the surgeries were necessary 

to treat claimant’s back and neck injuries. Initially, Dr. 

Korsh attempted to conservatively manage claimant’s back and 

neck conditions with physical therapy and prescription pain 

medication. After several months, claimant’s pain continued to 

increase. Dr. Korsh concluded that surgery, first for the 

lumbar back, and then for the neck, could improve claimant’s 

condition and decrease his pain. Dr. Korsh’s initial attempts 

to avoid surgical intervention and his ultimate conclusion that 

claimant’s back and neck pain could improve with surgery support 

the conclusion that claimant’s treatment was necessary and 

reasonable. We, therefore, affirm the commission’s holding that 

claimant’s treatment was necessary and reasonable. 

- 14 -
V. AUTHORIZED TREATING PHYSICIANS 

 Appellant contends that the commission erred in not 

recognizing Dr. Joiner as claimant’s authorized treating 

physician and in reversing the deputy commissioner’s ruling that 

Drs. Mathews, Mathern and Knox were not authorized treating 

physicians. We reject that position. 

 “Whether an employer is responsible for medical 

expenses . . . depends upon . . . (3) whether the treating 

physician made a referral to the patient.” Volvo White Truck 

Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). 

It is, therefore, a question of fact for the commission to 

determine whether a referral was made. On appeal, we do not 

disturb the commission’s findings of fact if supported by 

credible evidence. See Carter v. Hercules Powder Co., 182 Va. 

282, 288, 28 S.E.2d 736, 739 (1944). 

 The commission clearly relied on claimant’s deposition 

testimony that Dr. Korsh, when contacted by claimant regarding 

Korsh’s relocation, told claimant that he and Ms. Boone agreed 

on Dr. Joiner but that it was ultimately claimant’s choice as to 

which doctor he was referred. Further, Dr. Korsh’s office note 

of June 9, 1997 substantiated claimant’s deposition testimony. 

Dr. Korsh noted that he recommended Dr. Joiner but claimant 

requested a referral to Dr. Knox. Dr. Korsh wrote that he told 

claimant he would make him an appointment with Dr. Knox. Dr. 

Korsh indicated that claimant would contact Dr. Korsh’s office 

- 15 -
after he considered which doctor he wished to see for follow-up 

care. 

 Dr. Korsh, then, sent a request to Dr. Knox for an 

appointment for claimant on June 12, 1997 by facsimile 

transmission. 

 On July 21, 1997, Dr. Korsh wrote a letter to Dr. Mathews 

stating that he was relocating his practice and his patient, Tim 

Turner, requested a referral to Dr. Mathews for follow-up care. 

Dr. Mathern, Dr. Mathews’ associate, noted in his office notes 

from claimant’s initial visit on July 29, 1997, that claimant 

was referred by Dr. Korsh. 

 Appellant relies on Dr. Korsh’s office notes that state 

that while the claimant requested an appointment with Dr. Knox, 

his referral was to Dr. Joiner. 

 The commission believed that Dr. Korsh, in attempting to 

accommodate the wishes of both Ms. Boone and claimant, created a 

situation where Ms. Boone believed the referral was to Dr. 

Joiner and claimant believed the referral was to Drs. Knox and 

Mathews. 

 The commission found that there was evidence to support 

claimant’s assertion that he was referred to Drs. Knox, Mathews 

and Mathern. We find that there is credible evidence in the 

record to support the commission’s finding and, therefore, hold 

that Drs. Knox, Mathews and Mathern were claimant’s authorized 

treating physicians.

- 16 -
 VI. UNJUSTIFIABLE REFUSAL OF MEDICAL TREATMENT 

 Appellant asserts that claimant unjustifiably refused 

medical treatment by electing not to return to Dr. Joiner for 

additional treatment. 

 We believe that this issue is resolved by our affirmance of 

the commission’s finding that Drs. Knox, Mathews and Mathern 

were authorized treating physicians. We find that claimant did 

not unjustifiably refuse medical treatment from Dr. Joiner as he 

was receiving authorized medical treatment from Drs. Knox, 

Mathews and Mathern. 

VII. CONCLUSION 

 For these reasons, we hold that claimant’s back and neck 

disabilities and treatment were causally related to the 

work-related accident on April 29, 1996. We also hold that the 

commission’s ruling that claimant’s treatment was necessary and 

reasonable, that Drs. Knox, Mathews and Mathern were authorized 

treating physicians, and that claimant did not unjustifiably 

refuse medical treatment is supported by credible evidence. 

Therefore, we affirm the decision of the commission. 

 Affirmed.

- 17 -