COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

SHOPPERS FOOD WAREHOUSE 

AND 

ZURICH INSURANCE COMPANY MEMORANDUM OPINION*

 PER CURIAM 

v. Record No. 1721-96-4 DECEMBER 17, 1996 

JOHN MAFIS GODFREY, JR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Colleen Marea Quinn; Cantor, Arkema & 

Edmonds, on briefs), for appellants. 

 (Kathleen G. Walsh; Ashcraft & Gerel, on 

brief), for appellee. 

 Shoppers Food Warehouse and its insurer (hereinafter 

collectively referred to as "employer") contend that the Workers' 

Compensation Commission erred in finding that (1) John Mafis 

Godfrey, Jr., sustained a compensable change in condition as of 

September 1, 1994; (2) Godfrey made a reasonable effort to market 

his residual work capacity after September 1, 1994; (3) Godfrey 

obtained a valid referral from Dr. David E. Couk for treatment 

rendered by Dr. Terry L. Whipple; and (4) the Bankhart lesion 

diagnosed by Dr. Whipple was causally related to Godfrey's 

compensable October 25, 1992 injury by accident. 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. Rule 5A:27. 

 

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

designated for publication. 
 2 

 I. Standard of Review

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

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

Factual findings made by the commission will be upheld if 

supported by credible evidence. James v. Capitol Steel Constr. 

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 II. Change in Condition

 The evidence proved that on October 25, 1992, Godfrey 

sustained a compensable injury by accident to his right shoulder. 

 The commission awarded Godfrey temporary total disability 

benefits for the periods October 28, 1992 through December 13, 

1992 and December 29, 1992 through July 13, 1994. On May 24, 

1994, Dr. Mayo F. Friedlis, a physiatrist, opined that Godfrey's 

rotator cuff tear had healed and released Godfrey to return to 

his pre-injury work. On November 30, 1994, based upon Dr. 

Friedlis' report, Deputy Commissioner Lee granted employer's 

change in condition application and terminated Godfrey's benefits 

as of July 13, 1994. 

 On August 11, 1994, Dr. Donald L. McNay, an orthopedic 

surgeon, examined and noted that Godfrey suffered pain when he 

placed his arm under weighted stress. Dr. McNay restricted 

Godfrey's lifting to fifty to sixty pounds and his overhead 

lifting to five pounds. 

 "[A] change in condition 'means a change in physical 
 3 

condition of the employee . . . .'" Crystal Oil Co. v. Dotson, 

12 Va. App. 1014, 1018-19, 408 S.E.2d 252, 253 (1991) (citation 

omitted). Dr. McNay's August 11, 1994 report constitutes 

credible evidence to support the commission's finding that 

Godfrey met his burden of proving a change in condition as of 

September 1, 1994. 

 Employer argues that the commission should not have 

considered Dr. McNay's August 11, 1994 report because it was 

previously before Deputy Commissioner Lee when she rendered her 

November 30, 1994 opinion, from which Godfrey did not appeal. In 

arguing that the doctrine of res judicata barred the commission 

from considering Dr. McNay's report, employer ignores a finding 

that Deputy Commissioner Lee stated in her November 30, 1994 

opinion. She specifically found that "[s]ince the only issue 

before the Commission is the Employer's Application, i.e., the 

claimant does not have a change in condition claim before us, we 

will not consider whether the August 11, 1994 medical record from 

Dr. McNay constituted a valid change in condition and rendered 

the claimant partially disabled." That finding dispositively 

establishes that employer's res judicata argument is without 

merit. 

 III. Marketing

 The commission found that Godfrey made a reasonable effort 

to market his remaining work capacity after Dr. McNay imposed 

work restrictions. Godfrey submitted a lengthy list of potential 
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employers which he contacted between September 1994 and October 

1995. Between September 1994 and April 1995, Godfrey submitted 

approximately 130 resumes to prospective employers. 

 On April 1, 1995, Godfrey obtained employment as a used car 

salesman. On July 28, 1995, that employer terminated Godfrey's 

employment because of anticipated absences for surgery 

recommended by Dr. Whipple. Following his termination, Godfrey 

interviewed with real estate companies. However, these companies 

would not pay the fees necessary to reactivate Godfrey's real 

estate license nor could Godfrey afford to pay such fees. 

 Godfrey's testimony and his list of job contacts constitute 

credible evidence to support the commission's finding that 

Godfrey made a reasonable effort to market his residual work 

capacity. See National Linen Serv. v. McGuinn, 8 Va. App. 267, 

272, 380 S.E.2d 31, 34 (1989). 

 IV. Dr. Whipple's Treatment/Bankhart Lesion

 Because Dr. Couk could not determine the cause of Godfrey's 

continuing pain, he repeatedly tried to obtain permission from 

employer's insurance carrier to refer Godfrey to Dr. Whipple for 

evaluation. The insurance carrier did not respond to Dr. Couk's 

numerous requests. On July 26, 1995, pursuant to Dr. Couk's 

referral, Godfrey was examined by Dr. Whipple, without the 

approval of employer or its insurance carrier. 

 "Whether the employer is responsible for medical 

expenses . . . depends upon: (1) whether the medical service was 
 5 

causally related to the industrial injury; (2) whether such other 

medical attention was necessary; and (3) whether the treating 

physician made a referral . . . [of] the patient." Volvo White 

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

(1985). The commission found that Dr. Couk made a valid referral 

of Godfrey to Dr. Whipple. The commission did not err in so 

finding. "[M]edical management of the claimant is to be directed 

by the treating physician, not by an employer's representative. 

'[N]either the employer nor its insurance carrier may limit the 

treating physician in the medical specialist, or treating 

facilities to which the claimant may be referred for treatment.'" 

Jensen Press v. Ale, 1 Va. App. 153, 158, 336 S.E.2d 522, 525 

(1985) (citation omitted). 

 In his July 27, 1995 letter, Dr. Whipple opined that Godfrey 

had a Bankhart lesion, that "clinically, the shoulder sublaxes 

anteriorly, and [that] such a defect is consistent with his 

mechanism of injury." Based upon this opinion, the commission 

could reasonably infer that Godfrey's Bankhart lesion and the 

surgery recommended by Dr. Whipple were causally related to 

Godfrey's compensable injury by accident. 

 The commission accepted the opinions of Drs. Whipple and 

Couk and rejected the contrary opinions of Drs. Debs, Friedlis, 

and Pangallo with regard to the cause of the Bankhart lesion and 

the necessity of surgery. The medical records and opinions of 

Drs. Whipple and Couk constitute credible evidence to support the 
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commission's decision. "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. 

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

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

 

Affirmed.