COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judge Elder and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

WLR FOODS, INC. and 

 PACIFIC EMPLOYERS INSURANCE COMPANY 

 OPINION BY 

v. Record No. 0536-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 DECEMBER 23, 1997 

VILLABALDO CARDOSA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Cathleen P. Welsh (Wharton, Aldhizer & 

Weaver, P.L.C., on brief), for appellants. 

 No brief or argument for appellee. 

 WLR Foods, Inc. and Pacific Employers Insurance Company 

(collectively employer) appeal the Workers' Compensation 

Commission's decision awarding benefits to Villabaldo Cardosa 

(claimant). Employer argues the commission erred in: (1) 

awarding benefits beyond the scope of claimant's request; (2) 

awarding benefits for a time-barred claim; and (3) finding that 

claimant's disability was causally related to his compensable 

injury. For the following reasons, we reverse the commission's 

decision. 

 I. 

 Villabaldo Cardosa is a fifty-three-year-old illiterate 

Mexican man who has worked in this country for at least eight 

years. He began processing chickens for employer on January 16, 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 
 2 

1994. His job involved taking frozen chickens out of a box which 

contained twenty to twenty-five chickens, and placing the 

chickens on a cone. On April 15, 1994, as claimant was removing 

chickens from a box, the side of the box collapsed and he fell 

forward. Claimant broke his fall with his right arm and injured 

his right shoulder. After his injury, claimant worked for 

employer in a light duty position for an undetermined time before 

returning to regular duty. He last worked for employer November 

30, 1994. 

 The evidence established that, on June 3, 1994, claimant saw 

Dr. G. Edward Chappell, Jr., an orthopedic surgeon. Dr. Chappell 

recorded that claimant had no prior problems with his shoulder 

but had experienced pain since the accident. He recommended 

occupational therapy, prescribed medication, and restricted all 

use of claimant's right arm at work. Dr. Chappell indicated that 

"part of his problem" is adhesive capsulitis, or "frozen 

shoulder." Dr. Chappell characterized adhesive capsulitis as "a 

disease of ordinary life unrelated to [claimant's] April, 1994 

injury." On October 7, Dr. Chappell noted no change in 

claimant's symptoms but more range of motion. Dr. Chappell 

lifted the work restrictions. On November 7, Dr. Chappell noted 

continuing symptoms but stated he did not think surgery would 

help the adhesive capsulitis. Claimant did not return to Dr. 

Chappell. Nonetheless, on December 30, 1994, Dr. Chappell 

imposed a lifting restriction of a maximum of five pounds with no 
 3 

overhead use. 

 Without a referral from Dr. Chappell, claimant next sought 

medical treatment on May 23, 1995 from Dr. Robert Keeton, who 

declared claimant disabled "due to continuing shoulder problems." 

 Dr. Keeton referred claimant to Dr. Creston Baumunk, another 

orthopedist. On July 5, Dr. Baumunk diagnosed claimant's 

condition as frozen shoulder probably secondary to impingement 

syndrome. On July 26, however, Dr. Baumunk indicated that the 

impingement syndrome was secondary to the frozen shoulder. On 

August 23, Dr. Baumunk observed that the long-term result of 

claimant's physical therapy "has been that he has regained some 

motion in the shoulder and this has been somewhat gratifying. At 

this point in time he continues, however, to have 

impingement-type syndrome." Dr. Baumunk offered three diagnoses: 

 (1) right frozen shoulder, resolving slowly; (2) impingement 

syndrome, right shoulder; and (3) degenerative arthritis, right 

AC joint. 

 Through September and October 1995, claimant had several 

visits with Dr. Baumunk or his associate, Dr. Davis. After an 

office visit on November 1, Dr. Baumunk summarized the history: 

 Mr. Cardoso [sic] returned today, this time 

with an English interpreter. He claims that 

he fell on his shoulder at work and had no 

problem prior to . . . this, and at that time 

he began to experience pain in the right 

shoulder area. He has been seen here for 

several months, [and] undergone four 

injections into the AC joint. He has had an 

arthrogram which shows no rotator cuff tear, 

and also has had subacromial injections. He 

has had physical therapy. He has also had 
 4 

multiple anti-inflammatories. He still has 

chronic pain and is unable to abduct above 90 

degrees without marked pain in the shoulder 

area. 

Dr. Baumunk concluded that, based on a diagnosis of "impingement 

syndrome with degenerative AC joint," and the failure of 

conservative therapy, surgery was recommended. Dr. Baumunk 

performed the surgery on November 9, 1995. 

 Claimant's condition improved after surgery, and by January 

22, 1996, he had almost full range of motion of his shoulder. On 

March 18, Dr. Baumunk noted an improved range of motion despite 

some neck spasm, and he imposed a permanent restriction against 

overhead work. Dr. Baumunk anticipated a release at the next 

visit. 

 On June 3, 1996, without a referral, claimant saw Dr. 

Charles Hubbard, an orthopedist. Dr. Hubbard diagnosed a partial 

thickness tear of the rotator cuff and AC joint degeneration, and 

he assigned a 19% impairment of the upper right extremity with 

work restrictions of no lifting over ten pounds and no overhead 

work. He stated, in response to claimant's counsel's questions, 

that, "[a]ccording to the records, the present disability is due 

to his 4/1/94 [sic] injury." Dr. Hubbard clarified, in response 

to employer's counsel, that he did not have access to Dr. 

Chappell's records and that arthritis of the AC joint and a 

subacromial bone spur contributed to claimant's impingement 

syndrome. 

 Claimant first filed a claim for benefits on March 3, 1995. 
 5 

 At an August 23, 1995 hearing, Deputy Commissioner Herring found 

that claimant had sustained a compensable injury by accident and 

that employer would "be responsible for medical care and 

treatment proximately related to the right shoulder contusion." 

However, based on Dr. Chappell's statements, the deputy 

commissioner also found that the employer's responsibility "shall 

not include any treatment for adhesive capsulitis." This opinion 

was not appealed and became final. 

 On February 14, 1996, claimant, by counsel, filed a 

change-in-condition application for benefits beginning February 

1, 1996. Claimant never amended the application, either in 

writing or at the hearing, to expand the dates for coverage. At 

the June 5, 1996 hearing, claimant testified through an 

interpreter about his pre-injury and post-injury work. Claimant 

also described his efforts to market his remaining work capacity, 

which included applying for a job with employer on February 1, 

visiting an unspecified number of jobs in February, and inquiring 

at four or five plants between February and June. 

 Deputy Commissioner Mercer denied claimant's 

change-in-condition application, finding that claimant "does not 

suffer from a rotator cuff tear, and . . . that the diagnosis of 

frozen shoulder is not related to the accident." He also found 

that claimant failed to prove disability from his pre-injury 

work, reasonable efforts to market his residual work capacity, 

and a causal relationship between his disability and his 
 6 

compensable injury. Claimant appealed to the full commission. 

 The commission reversed and awarded claimant temporary total 

disability benefits for the period October 25, 1995 through 

December 13, 1995, and from June 3, 1996 until circumstances 

require a modification. The commission found that Deputy 

Commissioner Herring's unappealed decision was res judicata, and 

employer was not responsible for treatment of claimant's adhesive 

capsulitis (frozen shoulder). However, "the record clearly 

reflects that the claimant suffers from more than one condition. 

 In addition to adhesive capsulitis, the claimant has also been 

diagnosed with impingement syndrome caused by the fall at work." 

 Although "the frozen shoulder resolved over time, the 

impingement syndrome worsened, necessitating surgery on November 

9, 1995." The commission found that the two conditions are 

separate diagnoses and that "[t]reatment of and disability caused 

by the impingement syndrome are not barred by res judicata." 

 The commission found that Dr. Baumunk assessed claimant as 

totally disabled from October 25 to December 13, 1995, a time 

period predating that requested by claimant or addressed at the 

hearing. The commission further found that, "[b]ased on the 

uncontradicted opinion of Dr. Hubbard . . . the claimant was 

partially disabled and unable to perform his regular job as of 

June 3, 1996." The commission evaluated claimant's efforts to 

market his residual capacity and concluded that "for a 

non-English-speaking, illiterate manual laborer, age 53, with a 
 7 

ten pound lifting restriction, and no rehabilitation assistance 

from the employer who has continually denied this claim, the 

marketing is reasonable." 
 8 

 II. 

 Employer first argues that the commission erred in awarding 

claimant benefits for October 25 to December 13, 1995, because 

claimant requested wage benefits only for the time period 

beginning February 1, 1996. Employer contends that the 

commission is not empowered to award benefits for time periods 

not requested in the application for a hearing or at the hearing 

itself and which the employer does not know it will be required 

to defend. We agree. 

 "Due process is flexible and calls for such procedural 

protections as the particular situation demands." Duncan v. ABF 

Freight System, Inc., 20 Va. App. 418, 422, 457 S.E.2d 424, 426 

(1995) (citing Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). 

It is well settled that 

 [a]n elementary and fundamental requirement 

of due process in any proceeding which is to 

be accorded finality is notice reasonably 

calculated, under all the circumstances, to 

apprise interested parties of the pendency of 

the action and afford them an opportunity to 

present their objections. 

Crystal City Oil Co. v. Dotson, 12 Va. App. 1014, 1018, 408 

S.E.2d 252, 254 (1991) (citing Mullane v. Central Hanover Bank & 

Trust Co., 339 U.S. 306, 314 (1950)) (other citations omitted). 

"Pleading requirements in administrative proceedings before [the 

commission] are traditionally more informal than judicial 

proceedings." Sergio's Pizza v. Soncini, 1 Va. App. 370, 376, 

339 S.E.2d 204, 207 (1986). However, the commission must use 
 9 

procedures that "afford the parties minimal due process 

safeguards." Id.

 Where the commission modifies a claim at the hearing or 

review stage without advising the employer in advance, "the 

dispositive issue . . . is whether the employer was prejudiced" 

by the lack of notice. Crystal City Oil Co., 12 Va. App. at 

1018, 408 S.E.2d at 253-54 (amendment adding claim at 

change-in-condition hearing did not prejudice employer because 

"employer had sufficient notice reasonably calculated under the 

circumstances to advise it of the pending claim"). See Oak Hill 

Nursing Home, Inc. v. Back, 221 Va. 411, 270 S.E.2d 723 (1980) 

(consolidation with the original claim at the hearing stage gave 

the employer sufficient notice for the claim to be treated as a 

change of condition rather than an original application); 

Sergio's Pizza v. Soncini, 1 Va. App. 370, 339 S.E.2d 204 (1986) 

(procedure for treating benefits claim as change-in-condition 

claim at review stage did not provide employer a reasonable 

opportunity to present evidence or defend). 

 In the instant case, the commission essentially modified 

claimant's change-in-condition application at the decision stage, 

after both the hearing and the review proceedings were 

concluded.1

 Claimant's application requested benefits beginning 

 

 1The commission acknowledges that "[t]he claimant in this 

case is seeking temporary total disability benefits commencing 

February 1, 1996, and continuing." However, the opinion does not 

indicate whether the award of temporary total benefits for a time 

period before February 1, 1996 was deliberate or inadvertent. 

Either way, the analysis is the same. 
 10 

February 1, 1996, and the application was never amended to 

encompass any greater time period. In his pleadings and at the 

hearing, claimant acknowledged that he was seeking benefits 

beginning February 1, 1996. The transcript of the hearing 

reflects a focus on claimant's condition and efforts to market 

his residual work capacity after February 1, 1996. Employer had 

no notice of a potential award of wage benefits concerning any 

earlier time period until the commission rendered its decision on 

January 31, 1997. 

 The commission's procedure "precluded an adequate 

opportunity to defend [against an award for this time period] 

since it was litigated only as [a claim for benefits beginning 

February 1, 1996]." Sergio's Pizza, 1 Va. App. at 376, 339 

S.E.2d at 208. Although employer collected and presented medical 

evidence to support its causation defense, the evidence is 

ambiguous regarding claimant's degree and duration of disability 

from October through December 1995. Had employer been on notice 

that it would be required to defend against a claim for wage 

benefits during this time, it could have addressed this period in 

detail and obtained additional information. The commission's sua

sponte award of unrequested benefits denied employer this 

opportunity and "fails to comport with due process notions of 

fair play and substantial justice." Id. at 377, 339 S.E.2d at 

208. Therefore, the commission's award of temporary total 

disability benefits for the period from October 25 to December 
 11 

13, 1995 is reversed.2

 III. 

 Employer next contends the commission's award of temporary 

total disability benefits beginning June 3, 1996 is barred by the 

statute of limitations. A claim for compensation must be filed 

with the commission within two years after the accident or the 

claim shall be forever barred. See Code § 65.2-601. A claimant 

who receives medical benefits but who fails to demonstrate 

disability during the two-year period may not be awarded total 

disability benefits. See Mayberry v. Alcoa Bldg. Prods., 18 Va. 

App. 18, 441 S.E.2d 349 (1994). 

 In the instant case, claimant's shoulder injury occurred on 

April 15, 1994, and he was not restricted from his pre-injury 

work until he saw Dr. Hubbard on June 3, 1996, more than 

twenty-four months later. We agree with Deputy Commissioner 

Mercer, who noted that "[a]ny claim for wage loss benefits first 

beginning in June 1996, when the lifting restriction was imposed 

by Dr. Hubbard, would also be jurisdictionally barred." 

Consequently, we reverse the commission's award of wage benefits 

beginning June 3, 1996. 

 

 2Employer also claims that the commission's award of 

benefits during this time period violates its own rule 

prohibiting awards of additional compensation more than ninety 

days before the filing of a change-in-condition application. See

Rule 1.2(B). Because we reverse the award on alternative 

grounds, this argument is moot. 
 12 

 IV. 

 Lastly, employer argues the commission erred in finding that 

claimant's condition and disability were causally related to his 

compensable injury. Viewed in the light most favorable to the 

claimant, who prevailed before the commission, see Fairfax County 

v. Espinola, 11 Va. App. 126, 129, 396 S.E.2d 856, 858 (1990), 

the record reflects conflicting medical testimony from Dr. 

Chappell, Dr. Baumunk and Dr. Hubbard regarding the relationship 

between claimant's shoulder condition and his injury. Dr. 

Chappell concluded that "part of" claimant's shoulder problem was 

"adhesive capsulitis," (frozen shoulder), which is "a disease of 

ordinary life." Dr. Baumunk attributed claimant's "continuing 

shoulder problems" to both frozen shoulder and a second 

condition, "impingement syndrome." Dr. Hubbard opined that 

claimant's "present disability is due to his . . . injury." 

 "A question raised by conflicting medical opinion is a 

question of fact." Department of Corrections v. Powell, 2 Va. 

App. 712, 714, 347 S.E.2d 532, 533 (1986). "Decisions of the 

commission as to questions of fact, if supported by credible 

evidence, are conclusive and binding on this Court." Manassas 

Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 

826 (1991). "The fact that there is contrary evidence in the 

record is of no consequence." Wagner Enters., Inc. v. Brooks, 12 

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

Credible evidence supports the commission's finding that although 
 13 

employer is not responsible for claimant's frozen shoulder, 

"claimant suffers from more than one condition," and "[t]reatment 

of and disability caused by the impingement syndrome are not 

barred by res judicata." Dr. Baumunk's evidence supports the 

conclusion that "claimant's impingement syndrome was caused by 

his fall at work." Consequently, we affirm the commission's 

determination that a causal relationship exists between 

claimant's shoulder condition and his April 15, 1994 injury.3

 V. 

 While claimant's award of wage benefits must be reversed as 

time-barred, his eligibility for medical benefits is still 

unresolved. 

 Whether the employer is responsible for 

medical expenses . . . depends upon: (1) 

whether the medical service was causally 

related to the industrial injury; (2) whether 

such other medical attention was necessary; 

and (3) whether the treating physician made a 

referral. 

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

903, 906 (1985). Employer defended claimant's request for 

medical benefits on the grounds that claimant had failed to 

establish causation and that claimant's treatment was 

unauthorized. We affirmed the commission's finding on causation, 

but the parties agreed at the June 5, 1996 hearing to reserve the 

issue of whether his treatment was properly authorized. 

 

 3Our resolution of the first two issues renders unnecessary 

a consideration of whether claimant reasonably marketed his 

residual work capacity. 
 14 

Consequently, we remand for proceedings to determine whether 

employer is responsible for medical benefits. 

 Reversed and remanded.