COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

KENNETH E. COBB 

 MEMORANDUM OPINION*

v. Record No. 1065-97-1 PER CURIAM 

 DECEMBER, 9, 1997 

SHAW PAINT & WALL PAPER COMPANY, INC. 

AND 

LIBERTY MUTUAL INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Kenneth E. Cobb, pro se, on brief). 

 (Bradford C. Jacob; Taylor & Walker, on 

brief), for appellees. 

 Kenneth E. Cobb contends that the Workers' Compensation 

Commission erred in finding that he was not entitled to (1) a 

reinstatement of compensation benefits, and (2) a change in 

treating physicians. Cobb also requests an award for lost 

earnings, partial permanent disability benefits, and pain and 

suffering. 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 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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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)). 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). Unless we can say as a matter of law that Cobb's 

evidence sustained his burden of proof, the commission's findings 

are binding and conclusive upon us. See Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 In ruling that Cobb's evidence did not prove that the 

employer forged Cobb's signature on the Agreed Statement of Fact 

and that Cobb was not entitled to a reinstatement of compensation 

benefits, the commission found as follows: 

 After considering [Cobb's] testimony, we 

are unpersuaded, as was the Deputy 

Commissioner, that [Cobb] did not sign the 

Agreed Statement of Fact. We therefore find 

no evidence of imposition or fraud. 

 We do find evidence of mutual mistake, 

because the wrong reason for termination of 

the award was checked on the Agreed Statement 

of Fact. Nonetheless, in light of the 

unequivocal release to full unrestricted duty 

on December 8, 1995, which was never 

retracted and was in fact reiterated on 

August 1, 1996, by Dr. Payne, we find [Cobb] 

is not entitled to benefits after December 8, 

1995. We therefore conclude that the Deputy 

Commissioner properly declined to set aside 

the termination of [Cobb's] award. 

 Based upon the testimony of Cobb and Matthew Thompson, the 
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insurance adjuster, the commission could find that the parties 

signed the Agreed Statement of Fact. Because credible evidence 

supports that finding, it is conclusive and binding on appeal. 

Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 

782, 788 (1988). Furthermore, the commission could reasonably 

infer from the evidence that when the statement was signed the 

incorrect box had been checked, indicating that Cobb had returned 

to pre-injury work rather than that he had been released to 

return to pre-injury work. "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 County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 

695, 698 (1988). Furthermore, the undisputed medical records of 

Dr. Loel Z. Payne, the treating orthopedist, proved that as of 

December 8, 1995, Dr. Payne had released Cobb to return to his 

pre-injury work without restrictions. 

 Because the evidence supports the commission's findings, 

they are binding and conclusive upon us. See id. In view of 

those findings, we cannot say as a matter of law that the 

commission erred in refusing to reinstate Cobb's compensation 

benefits. 

 II. 

 Whether a treating physician has released or abandoned his 

patient generally is determined by the express intent of the 

physician. In some cases, the total circumstances must be 
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analyzed in order to determine whether the discharge, release, or 

abandonment of the patient was intended. This is a factual 

determination that the commission must make. See Jensen Press v. 

Ale, 1 Va. App. 153, 157, 336 S.E.2d 522, 524 (1985). 

 In ruling that Cobb was not entitled to change his treating 

physicians, the commission found as follows: 

 Dr. Payne, [Cobb's] treating physician, is an 

orthopedic specialist who has appropriately 

evaluated and treated [Cobb's] injury. 

[Cobb's] condition progressed to the point 

where Dr. Payne released him to full, 

unrestricted duty. Although Dr. Payne has 

stated that he has no orthopedic treatment 

for [Cobb], he has advised [Cobb] to return 

as needed, and has suggested that [Cobb] 

might obtain relief from his muscle spasms 

through chiropractic treatment. [Cobb] must 

continue to seek treatment from Dr. Payne and 

his referrals. 

 The commission's findings are amply supported by the medical 

records and will not be disturbed on appeal. Thus, we cannot 

find as a matter of law that the commission erred in denying 

Cobb's request for a change in treating physicians. 

 III. 

 Cobb did not make a claim before the commission for $33,280 

in lost earnings, permanent partial disability benefits, or for 

$50,000 in pain and suffering. Accordingly, we will not address 

those theories of recovery for the first time on appeal. Rule 

5A:18; see Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 

192, 355 S.E.2d 347, 349 (1987). 

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