COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Chesapeake, Virginia 

NEWPORT NEWS SHIPBUILDING 

 AND DRY DOCK COMPANY 

 MEMORANDUM OPINION* BY 

 JUDGE ROBERT J. HUMPHREYS 

v. Record No. 2914-00-1 JUNE 26, 2001 

 

ROBERT E. TOWNSEND 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Christopher R. Hedrick (Lexine D. Walker; 

Mason, Cowardin & Mason, P.C., on brief), for 

appellant. 

 Robert J. Macbeth, Jr. (Rutter, Walsh, Mills 

& Rutter, L.L.P., on brief), for appellee. 

 Newport News Shipbuilding and Dry Dock Company ("employer") 

appeals a decision of the Virginia Workers' Compensation 

Commission, awarding Robert E. Townsend permanent partial 

disability benefits based upon a 17% permanent partial 

impairment rating, and denying the employer's application for 

credit against future compensation for the overpayment of 

benefits paid to Townsend. Because this opinion has no 

precedential value and because the parties are fully conversant 

with the facts, we do not recite them in detail here. 

 

*

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

designated for publication. 
 Townsend injured his right knee on December 9, 1997, when 

he jumped off of a platform at his worksite with the employer. 

On June 5, 1998, Dr. Sheldon Cohn advised that Townsend had 

reached maximum medical improvement and issued permanent work 

restrictions. The employer was unable to offer Townsend a 

position within his restrictions. 

 The employer sent a letter to Dr. Cohn on June 8, 1998, 

requesting a clarification of the relation between Townsend's 

"present injury" and a prior right knee injury he had suffered 

in 1989. Dr. Cohn responded that Townsend suffered from a 17% 

permanent impairment rating of his right leg. Dr. Cohn opined 

that Townsend's condition and work restrictions were related to 

the 1989 injury and attributed 10% of the impairment rating to 

the 1989 injury, and 7% to the 1997 injury. 

 On August 14, 1999, by letter, Dr. Cohn elaborated on his 

opinion, stating: 

With this in mind, it appears that Mr. 

Townsend has developed, over time, a 

degenerative problem which is patellofemoral 

arthrosis. I believe that is the major 

cause of his knee problems at this time. I 

do not believe that this history changes his 

impairment, however, I do believe that the 

injury which he had on 12/9/97 exacerbated 

his pre-existing patellofemoral arthritis to 

the point where he is unable to work at his 

usual job. I do feel that his permanent 

work restrictions are due to his most recent 

work injury. 

On January 6, 1999, Townsend began employment with a new 

employer, earning an average weekly wage of $417.81, and 

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received pay for this work while receiving compensation 

benefits, until June 28, 1999. 

Townsend conceded that the employer was entitled to a 

credit against his award for permanent disability for the 

benefits paid after January 6, 1999. However, the employer 

asserted that it was entitled to a credit against future 

compensation for an overpayment of temporary partial benefits 

for the period when Townsend was working for another employer 

but did not disclose his employment. 

The employer's case manager testified that Townsend 

forwarded a letter to the employer on February 5, 1999, stating 

that he was employed at the Western Regional Jail in Portsmouth. 

By way of the letter, Townsend also informed the employer that 

he would be earning a salary of $21,000.00. The case manager 

stated that she had to call three different jails to verify 

Townsend's employment, which was actually with Hampton Roads 

Regional Jail in Portsmouth, Virginia. When she contacted the 

jail, the supervisor requested a subpoena before releasing 

and/or verifying the information the employer needed to file an 

application for a credit before the commission. The employer 

was ultimately unable to verify the necessary information until 

June 18, 1999. 

The Deputy Commissioner denied the employer's request to 

divide the 17% permanent partial impairment rating between the 

1989 injury and the 1997 injury, finding that the evidence 

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established Townsend had suffered no residual disability from 

his 1989 injury, making the employer responsible for the 

aggravation of Townsend's pre-existing condition, and therefore 

his entire permanent impairment. The deputy also found that 

Townsend provided an accurate and reasonably prompt notification 

of his return to employment and his salary as required pursuant 

to Code § 65.2-712. The commission affirmed the deputy's 

decision. 

It is well established that: 

factual findings of the [commission] will be 

upheld on appeal if supported by credible 

evidence. The causal relationship, or lack 

thereof, between a disease and employment is 

a question of fact. Similarly, the question 

[of causation] raised by conflicting expert 

medical opinions is one of fact. The 

deference that we give to the commission's 

fact-finding on medical questions is based 

upon the "unwisdom of an attempt by . . . 

[courts] uninitiated into the mysteries to 

choose between conflicting expert medical 

opinions." Consequently, where the 

commission resolves the conflict in medical 

testimony, on appeal the medical issue will 

not be settled by judicial fiat, and the 

commission's decision is binding so long as 

it is supported by credible evidence. 

Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872, 

874 (1992) (citation omitted). 

 Thus, contrary to the employer's assertion, conflicting 

medical evidence is not sufficient to warrant the reversal of a 

commission decision. See Georgia-Pacific Corp. v. Robinson, 32 

Va. App. 1, 5, 526 S.E.2d 267, 268 (2000). The commission gave 

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little weight to the opinion of Dr. Cohn attributing 10% of 

Townsend's permanent impairment to his 1989 injury and 7% to his 

1997 injury, due to Townsend's conflicting medical history which 

demonstrated that prior to 1997, Townsend had never been 

diagnosed with any permanent impairment, provided with a 

permanent impairment rating, nor placed under any permanent work 

restrictions. The commission also considered Dr. Cohn's own 

conflicting opinions pertaining to the causation of Townsend's 

permanent work restrictions. Issues of weight and credibility 

are uniquely within the province of the commission, and we will 

not substitute our judgment for that of the trier of fact. See

City of Portsmouth Sheriff's Dept. v. Clark, 30 Va. App. 545, 

553, 518 S.E.2d 342, 346 (1999); see also Dollar General Store 

v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996). 

 With regard to the employer's request for a credit for an 

overpayment of benefits paid to Townsend, Code § 65.2-712 

clearly requires that an employee receiving compensation 

immediately: 

disclose to the employer, when the employer 

is self-insured, or insurer in all other 

cases, any . . . return to employment, [or] 

increase in his earnings . . . . Any 

payment . . . later determined . . . to have 

been procured by the employee . . . by 

fraud, misrepresentation, or failure to 

report any . . . return to employment, [or] 

increase in earnings . . . may be recovered 

from the claimant . . . by the employer. . . 

either by way of credit against future 

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compensation payments due the claimant 

. . ., or by action at law against the 

claimant . . . . 

However, "[d]isclosure to employer is all that is required under 

Code § 65.2-712, and that section does not dictate an exclusive 

means by which the employee is to accomplish that disclosure. 

The legislature could have required, as it did in Code 

§ 65.2-600, that such disclosure be in the form of a written 

notice setting forth certain specific information, but it did 

not." Washington Metro. Area Transit v. Rogers, 17 Va. App. 

657, 660, 440 S.E.2d 142, 145 (1994). In light of this, we find 

no error in the commission's application of Code § 65.2-712 as 

it pertains to this case and affirm the commission's decision. 

Affirmed. 

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