COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, Elder, 

 Bray, Fitzpatrick and Overton 

Argued at Richmond, Virginia 

SHAWNEE MANAGEMENT CORPORATION AND 

 LIBERTY MUTUAL INSURANCE COMPANY 

 OPINION BY 

v. Record No. 0434-96-3 JUDGE LARRY G. ELDER 

 NOVEMBER 4, 1997 

RHONDA C. HAMILTON 

UPON A REHEARING EN BANC 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 J. David Griffin (Fowler, Griffin, Coyne & 

Coyne, P.C., on brief), for appellants. 

 George L. Townsend (Chandler, Franklin & 

O'Bryan, on brief), for appellee. 

 Shawnee Management Corporation (employer) appeals an order 

of the Workers' Compensation Commission awarding temporary total 

disability benefits to Rhonda C. Hamilton (claimant). Employer 

contends that the commission erred when it concluded that 

claimant's failure to entirely cease smoking cigarettes so that 

she could undergo back surgery was not a "refusal" of medical 

care under Code § 65.1-603(B). Employer also contends that the 

commission erred when it concluded that claimant justifiably 

refused an offer of selective employment. A panel of this Court 

reversed the commission's award, holding that claimant's failure 

to stop smoking completely as directed by her physicians was an 

unjustified refusal of the back surgery she needed in order to 

return to work. See Shawnee Management Corp. v. Hamilton, 24 Va. 

App. 151, 480 S.E.2d 773 (1997). We granted claimant a rehearing 
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en banc. For the reasons that follow, we affirm the commission's 

award of benefits. 

 I. 

 FACTS 

 In October, 1991, claimant lived in Winchester, Virginia and 

was employed as a crew person at a Hardee's Restaurant managed by 

employer. Claimant slipped on a wet floor in the restaurant and 

injured her back. The parties entered into a memorandum of 

agreement for temporary total disability benefits. At the time 

of her accident, claimant had smoked cigarettes regularly for 

twenty years. 

 In January, 1993, claimant's treating physician, Dr. Zoller, 

performed a "lumbar fusion" operation on claimant to treat her 

back injury. Upon admission to the hospital for the surgery, 

claimant ceased smoking cigarettes entirely and maintained her 

abstinence from smoking for about eighteen months. About two 

months after her surgery, claimant moved from Winchester to 

Manassas, Virginia. 

 Claimant's recovery from the back surgery was not smooth. 

During the surgery, she suffered "fairly significant 

brachioplexus injuries" to both of her arms due to the 

positioning of her body during the procedure. Her recovery from 

these injuries took several months. In addition, while 

rehabilitating her back, claimant experienced intermittent but 

severe pain in her back, buttocks, and legs. 
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 On July 20, 1993, Dr. Zoller wrote to employer's insurer 

that claimant "could be returned to some light duty work." Dr. 

Zoller set forth numerous restrictions on any work performed by 

claimant, including a limit on claimant's driving to "20 miles, 

or 30 minutes, continuously, and no more than twice daily." On 

August 11, employer sent a job description to Dr. Zoller 

regarding a position it planned to offer claimant as a cashier at 

a Hardee's Restaurant in Winchester. The job description 

included several accommodations to match the restrictions on 

claimant's work imposed by Dr. Zoller. Dr. Zoller approved the 

job description on August 25. On September 9, claimant declined 

employer's offer to return to work in the modified cashier's 

position because it required a 90 minute commute each way from 

Manassas to Winchester. 

 On September 13, 1993, employer filed an application for a 

hearing to suspend claimant's disability benefits on the ground 

that she had "refused selective employment within [her] physical 

capacity." The commission subsequently suspended claimant's 

benefits, but it did so on the ground that claimant had failed to 

keep it informed of her current mailing address. 

 In December, 1993, claimant moved back to Winchester. 

Sometime in mid-1994, she resumed smoking cigarettes to "calm her 

nerves" when her son "got in trouble." Her consumption of 

cigarettes increased to two packs per day. 

 On September 26, 1994, Dr. Zoller wrote that claimant 
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continued to experience pain in her back and right leg and that 

he had exhausted nearly all non-surgical options to treat her 

pain. He referred claimant to Dr. Kostuik at the Johns Hopkins 

Orthopaedic Center in Baltimore, Maryland for a second opinion. 

 On December 8, Dr. Kostuik examined claimant, concluded that 

she had "a nonunion of her fusion," and opined that she might 

benefit from an "anterior innerbody fusion." Dr. Kostuik gave 

claimant "a good prognosis for recovery" if she underwent the 

proposed operation. However, Dr. Kostuik told claimant that "she 

has to stop smoking and try to [lose] some weight" before he 

would perform the surgery. 

 On December 19, Dr. Zoller examined claimant and concurred 

with Dr. Kostuik's opinion that an anterior innerbody fusion was 

"appropriate" treatment. Like Dr. Kostuik, Dr. Zoller told 

claimant that quitting smoking "altogether" was a precondition of 

the proposed operation. When Dr. Zoller saw claimant again on 

February 22, 1995, claimant stated that she was still smoking 

cigarettes but that her consumption was "down to about 10 

cigarettes a day." 

 On January 3, 1995, Dr. Zoller wrote to employer's insurer 

that he had reconsidered his earlier opinion that claimant was 

capable of light duty work. He stated: 

 I sent [claimant] back to work on July 20, 

1993 assuming that possibly work would help 

improve things, but this was probably a 

mistake, and I think, in retrospect, it 

probably would have been more worthwhile to 

keep her on with Off-Work from that time 

until the present time. 
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* * * * * * * 

 I feel that [claimant] should be 

considered off work the entire period of 

time, never having been allowed to go back to 

work. 

 On February 6, 1995, claimant filed a claim with the 

commission for temporary total disability benefits beginning on 

September 14, 1993, the day after the suspension date of her 

earlier award. She alleged a change in condition and cited Dr. 

Zoller's revised medical opinion that she "shouldn't have been 

released to go back to work." Employer raised several defenses, 

including that claimant had unjustifiably refused medical 

treatment by failing to quit smoking and that claimant had 

refused selective employment in September, 1993. 

 On June 8, 1995, a deputy commissioner held a hearing on 

claimant's claim. At the hearing, claimant testified that since 

Dr. Kostuik informed her that she must quit smoking, she had 

reduced her consumption of cigarettes from two packs per day to 

"about a quarter" pack per day. She testified that she was 

"still continuing to try and stop altogether." There was no 

evidence in the record that employer had ever offered or that 

claimant had refused any medical treatment to assist her personal 

effort to stop smoking. 

 The deputy commissioner denied claimant's claim. The deputy 

commissioner first held that Dr. Zoller's revised medical opinion 

that claimant's disability had always been "total" constituted a 
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change in condition. However, the deputy commissioner also held 

that claimant's failure to cease smoking entirely was an 

unjustified refusal of the anterior innerbody fusion recommended 

by both Dr. Kostuik and Dr. Zoller. 

 Claimant appealed, and the commission reversed. The 

commission held that claimant's failure to stop smoking was not a 

"refusal" of the proposed back surgery. It reasoned: 

 The evidence in this case shows no such 

conscious or willful refusal [by claimant] to 

follow the treatment recommendations of her 

physicians regarding smoking. Rather, the 

evidence shows that the claimant has reduced 

her smoking habit by approximately 75%, 

without the aid of any prescribed medical or 

psychological programs, which we find 

demonstrates a substantial personal effort. 

. . . We are persuaded by this evidence that 

the claimant has made reasonable efforts that 

are continuing to try to end a habit . . . 

ingrained by usage over a period of 

approximately 24 years. 

The commission also held that claimant's refusal of the cashier's 

position offered to her in September, 1993, was justified because 

claimant's commute at the time would have violated the driving 

restrictions imposed by Dr. Zoller. The commission entered an 

award of temporary total disability benefits in favor of claimant 

retroactive to December 19, 1994, the date of the examination 

that prompted Dr. Zoller to revise his medical opinion. 

 II. 

REFUSAL OF MEDICAL CARE 

 Employer argues that the commission erred when it found that 

claimant had not "refused" the back surgery she needed to return 
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to work by failing to quit smoking entirely as of the date of the 

hearing. Because credible evidence supports the commission's 

finding that claimant had not refused to stop smoking, we find no 

error. 

 Code § 65.2-603(B) bars a claimant from receiving further 

compensation if the claimant unjustifiably refuses to accept 

medical services provided by the employer. Whether or not a 

claimant has "refused" medical treatment is a question of fact. 

See Stump v. Norfolk Shipbuilding & Dry Dock Corp., 187 Va. 932, 

934-35, 48 S.E.2d 209, 210 (1948) (treating the commission's 

determination of whether a claimant has refused medical services 

as a question of fact); see also Chesapeake Masonry Corp. v. 

Wiggington, 229 Va. 227, 229-30, 327 S.E.2d 121, 122 (1985) 

(holding that the commission's finding that the claimant 

unjustifiably refused medical care was supported by credible 

evidence and therefore binding on appeal). It is fundamental 

that "factual findings of the commission are binding on appeal" 

if supported by credible evidence. Spruill v. C.W. Wright 

Constr. Co., 8 Va. App. 330, 332, 381 S.E.2d 359, 360 (1989); see

Code § 65.2-706(A). 

 We do not retry the facts before the 

Commission nor do we review the weight, 

preponderance of the evidence, or the 

credibility of witnesses. If there is 

evidence or reasonable inference that can be 

drawn from the evidence to support the 

Commission's findings, they will not be 

disturbed by this Court on appeal, even 

though there is evidence in the record to 

support contrary findings of fact. 
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Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 

507, 510-11 (1983). 

 We hold that the evidence was sufficient to support the 

commission's finding that claimant's current unsuccessful attempt 

to quit smoking was not a "conscious or willful refusal to follow 

the treatment recommendations of her physicians regarding 

smoking." Viewing the evidence in the light most favorable to 

claimant, the prevailing party below, see R.G. Moore Bldg. Corp. 

v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990), the 

evidence proves that claimant was in the midst of an ongoing, 

good faith effort to end her smoking habit at the time of the 

hearing before the deputy commissioner. Claimant testified at 

the hearing that she had smoked cigarettes for over 23 years. 

Although she did quit smoking at the time of her first back 

surgery in January, 1993, she testified that she resumed the 

habit sometime in mid-1994. The evidence shows that in the seven 

months between claimant's appointment with Dr. Kostuik, when she 

was first directed to quit smoking, and the hearing before the 

deputy commissioner, claimant reduced her daily consumption of 

cigarettes by about 87%. Claimant testified that she was smoking 

two packs of cigarettes per day at the time she first saw Dr. 

Kostuik in December, 1994. Dr. Zoller wrote in his examination 

notes on February 22, 1995 that claimant had reduced her smoking 

to ten cigarettes per day. At the hearing on June 8, 1995, 

claimant testified that she was smoking about a quarter of a pack 
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per day and was still continuing her effort to "try and stop 

altogether." In addition, the record fails to establish that 

claimant rejected medical treatment that would have expedited her 

complete abandonment of cigarettes or that employer offered such 

treatment. In light of claimant's long history with cigarettes, 

the sizable reduction in her smoking, and her testimony that she 

had not abandoned her current effort to quit, credible evidence 

supports the commission's finding that claimant had not "refused" 

to comply with her physicians' directives to stop smoking. 

 III. 

REFUSAL OF SELECTIVE EMPLOYMENT 

 Employer also argues that claimant unjustifiably refused 

selective employment when she declined the cashier position 

offered to her in September, 1993. See Klate Holt Co. v. Holt, 

229 Va. 544, 545, 331 S.E.2d 446, 447 (1985); Talley v. Goodwin 

Bros. Lumber Co., 224 Va. 48, 52, 294 S.E.2d 818, 820 (1982). We 

disagree. 

 Relying on Dr. Zoller's revised medical opinion, the 

commission concluded that claimant was totally disabled as of 

December 19, 1994 and ordered benefits resumed at that date. 

Based on this determination, no employment offered by employer 

could possibly be suitable for claimant because claimant has no 

residual capacity to work. 

 Because the commission held that claimant is totally 

disabled, which employer does not contest on appeal, we hold that 
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this issue of selective employment is now moot. Once a 

controversy between litigants ceases to exist, "it is the duty of 

every judicial tribunal not to proceed to the formal 

determination of the apparent controversy . . . ." Hankins v.

Town of Va. Beach, 182 Va. 642, 643-44, 29 S.E.2d 831, 832 

(1944). 

 For the foregoing reasons, we affirm the commission's award. 

Affirmed.