COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Frank 

Argued at Chesapeake, Virginia 

MARRIOTT INTERNATIONAL, INC. AND 

 CONTINENTAL CASUALTY COMPANY 

 OPINION BY 

v. Record No. 0680-00-1 JUDGE JAMES W. BENTON, JR. 

 JANUARY 9, 2001 

ROBERT D. CARTER, III 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Roger L. Williams (John T. Cornett, Jr.; 

Williams, Lynch & Whitt, on brief), for 

appellants. 

 Byron A. Adams for appellee. 

 Marriott International, Inc., appeals from the Virginia 

Workers' Compensation Commission's award of temporary total 

disability benefits and medical benefits to Robert D. Carter, 

III. Marriott contends that Carter's disability was unrelated 

to his April 4, 1997 injury by accident and that the medical 

treatment provided by physicians other than Carter's treating 

physician was unauthorized. For the reasons that follow, we 

affirm the commission's decision. 

I. 

 On appeal, we review the evidence in the light most 

favorable to the party prevailing below. See R.G. Moore Bldg. 

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 

(1990). So viewed, the evidence at the evidentiary hearing 
proved that on April 4, 1997, Carter sustained an injury to his 

left knee while he was on his knees cleaning a floor. Carter 

testified that when he leaned back to grab a bucket, he felt a 

sharp pain in his knee. Marriott, his employer, denied 

responsibility for Carter's claim. 

 Carter selected as his treating physician Dr. Thomas 

Stiles, an orthopedic surgeon, who was listed in his employee 

handbook. On June 5, 1997, Dr. Stiles performed arthroscopic 

surgery on Carter's left knee, shaving some chondromalacia from 

the patella and removing a small flap tear on Carter's lateral 

meniscus. Dr. Stiles also shaved the fat pad on Carter's knee. 

Despite this surgical intervention, Carter continued to have 

pain in his knee. In August 1997, Dr. Stiles noted that Carter 

had a "rather marked weakness of his left quadriceps." 

Nevertheless, following a September 22, 1997 examination of 

Carter's knee, Dr. Stiles released Carter to return to work. 

 On October 2, 1997, after a fall he attributed to weakness 

in his knee, Carter went to a hospital emergency room, where he 

was treated by Dr. Thomas Camp. Dr. Camp's assessment of 

Carter's condition was that Carter had sustained an "[a]cute 

exacerbation of a chronic left knee disorder with effusion." 

Dr. Camp provided Carter with a knee immobilizer and crutches 

and directed him to follow up with his physician. 

 Carter testified that he had no income and no other source 

for paying his medical bills because Marriott had not paid any 

- 2 -
of his medical bills. Carter, therefore, obtained treatment 

through his wife's health insurance plan. Using her plan, he 

received treatment from Dr. Virginia Wells, the designated 

primary care physician for his wife's health insurance plan. 

After examining Carter regarding his knee injury, Dr. Wells 

referred Carter to Dr. Charles Wilhelm, an orthopedist. 

 Dr. Wilhelm viewed the videotape of the arthroscopic 

surgery performed by Dr. Stiles and opined that the 

chondromalacia treated by Dr. Stiles' surgery was probably 

caused by Carter's April 4, 1997 injury. Dr. Wilhelm further 

opined that he did not see any reason why Carter's accident 

could not have caused the chondromalacia. He explained that he 

was "not aware that there is any other contributing cause." Dr. 

Wilhelm testified that Carter's complaints of pain seemed out of 

proportion to the orthopedic manifestations of his injury; 

however, he further testified that "some people who have 

terrible softening and mechanical destruction of the joint . . . 

don't appear to have a lot of pain and then there are other 

people who don't have much destruction but who appear to have a 

lot of pain. It's a very diverse range of symptomatology for 

people who have that." Dr. Wilhelm stated that the procedure 

Dr. Stiles employed "might improve some mechanical symptoms, but 

would not be expected to alleviate the pain." He did not assert 

that Carter was malingering and noted that the atrophying of 

Carter's quadriceps tended to substantiate Carter's complaints 

- 3 -
of pain. Dr. Wilhelm testified that muscle atrophy can result 

either from injury and disuse or pain syndrome. 

 During a February 13, 1998 visit, Dr. Wilhelm noticed an 

absence of quadriceps contraction in Carter's left leg and 

referred Carter to a neurologist, Dr. Shawke Soueidan. Dr. 

Soueidan performed an EMG of Carter's left leg and lower back, 

the results of which were minimally abnormal. Based on the 

results of various tests, Dr. Soueidan concluded that the 

atrophy was not progressive, but was caused by disuse secondary 

to Carter's knee pain. After an August 1998 follow-up visit, 

Dr. Soueidan noticed, however, progressive atrophy of the 

quadriceps, coupled with hypoflexia. 

 On June 11, 1998, Dr. Wilhelm performed arthroscopic 

surgery because Carter "had persistent left knee pain." He 

observed further erosion of the articular surface of the kneecap 

and "some inflamed . . . lining tissue." Dr. Wilhelm found 

nothing that satisfactorily explained the extent of Carter's 

pain and admitted he was at a loss to explain the cause of the 

atrophy and hypoflexia. He described Carter's pain complaints 

as enigmatic and concluded that Carter "had a pain syndrome, 

which emanated from a work-related injury without a diagnosis 

for that ever provided by my intervention." Dr. Wilhelm 

explained that he could find no orthopedic explanation for 

Carter's pain; however, he concluded that Carter was pain-free 

- 4 -
prior to the accident and that the pain was caused by the work 

injury. 

 Following the hearing, the deputy commissioner ruled that 

Carter was unable to work as of December 30, 1997, and ordered 

compensation to be paid to Carter as of that date. The deputy 

commissioner also ruled, however, that the medical treatments 

Carter received from Drs. Camp, Wells, Wilhelm, and Soueidan 

were unauthorized and that Marriott was not responsible for 

those medical treatments. On review, the commission affirmed 

those rulings in part and reversed in part. The commission held 

that Carter was only partially disabled from December 30, 1997 

through June 15, 1998 and that he had failed to adequately 

market his residual work capacity. The commission also held 

that Carter was totally disabled effective June 16, 1998. 

Although the commission agreed that Dr. Stiles was Carter's 

treating physician, the commission applied Code § 65.2-603(C) 

and found that Carter had established good reason for seeking 

treatment from Dr. Wilhelm and the other physicians Carter had 

seen directly or by referral for his work-related injury. 

Marriott appealed this award. 

II. 

 "Causation is an essential element which must be proven by 

[an employee] in order to receive an award of compensation for 

an injury by accident . . . ." AMP, Inc. v. Ruebush, 10 Va. 

App. 270, 274, 391 S.E.2d 879, 881 (1990). "The actual 

- 5 -
determination of causation is a factual finding that will not be 

disturbed on appeal if there is credible evidence to support the 

finding." Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 

376 S.E.2d 814, 817 (1989). Moreover, "[w]here reasonable 

inferences may be drawn from the evidence in support of the 

commission's factual findings," we will not disturb those 

findings on appeal. Hawks v. Henrico County Sch. Bd., 7 Va. 

App. 398, 404, 374 S.E.2d 695, 698 (1988). 

 A doctor's statement that a certain condition is probably 

connected to the injury means there is a reasonable likelihood 

of causation, which "is sufficient to permit a trier of fact to 

accord the statement probative weight." Cook v. City of 

Waynesboro Police Dep't, 225 Va. 23, 30, 300 S.E.2d 746, 749 

(1983). The commission may also consider "[t]he testimony of 

[an employee] . . . in determining causation, especially where 

the medical testimony is inconclusive." Dollar General Store v. 

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

addition, the commission may rely upon circumstantial evidence 

in finding that an injury was caused by a particular accident. 

See Van Geuder v. Commonwealth, 192 Va. 548, 557, 65 S.E.2d 565, 

570-71 (1951). 

 Carter testified that his knee pain commenced with the work 

effort he was engaged in on April 4, 1997 and was never 

completely relieved by the medical treatment he received. The 

commission reviewed the medical evidence and found as follows: 

- 6 -
Dr. Wilhelm has consistently related the 

claimant's condition to the work-related 

incident. Dr. Wilhelm stated that the 

claimant suffered a pain syndrome that 

emanated from, and started with, the 

work-related injury. Similarly, both Dr. 

Camp and Dr. Soueidan noted the accident, 

the June 1997 surgery, and subsequent weak 

knee problems. Significantly, Dr. Stiles 

found marked left quadriceps weakness on 

August 25, 1997. No medical report advances 

a different cause. There is no medical 

evidence that any treatment was unreasonable 

or unnecessary. 

The medical evidence and the reasonable inferences that flow 

from this evidence support these findings. "Medical evidence is 

not necessarily conclusive, but is subject to the commission's 

consideration and weighing." Hungerford Mech. Corp. v. Hobson, 

11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). Furthermore, 

on appeal, we "[do] not retry the facts, reweigh the 

preponderance of the evidence, or make [our] own determination 

of the credibility of the witnesses." Wagner Enters., Inc. v. 

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

 Carter presented credible evidence that sufficiently proved 

his disabling condition was caused by the April 4, 1997 injury 

by accident. Accordingly, the commission's finding that 

Carter's injuries were causally connected to his industrial 

accident was not plainly wrong. 

III. 

 Where an employer initially denies that an injury is 

compensable, the employee is entitled to select a treating 

- 7 -
physician. See Bassett Burkeville Veneer v. Slaughter, 21 Va. 

App. 575, 578-79, 466 S.E.2d 127, 128-29 (1996). Once the 

employee selects a treating physician, the employee cannot 

unilaterally change physicians unless an emergency exists or the 

commission approves the change. See Goodyear Tire & Rubber Co. 

v. Pierce, 9 Va. App. 120, 130, 384 S.E.2d 333, 339 (1989). In 

a related vein, Code § 65.2-603(C) provides as follows: 

If in an emergency or on account of the 

employer's failure to provide the medical 

care during the period herein specified, or 

for other good reasons, a physician other 

than provided by the employer is called to 

treat the injured employee, during such 

period, the reasonable cost of such service 

shall be paid by the employer if ordered so 

to do by the Commission. 

 The record proved and the commission found that Carter 

turned to his wife's insurance plan to pay for his medical 

treatment. Her plan required him to use her primary care 

physician, who referred Carter to Dr. Wilhelm. The commission 

found that Carter "had good reason to treat with [Drs. Wells, 

Camp, and Wilhelm] because [Marriott] had declined to accept the 

claim and payment for these physicians would be covered by his 

wife's health insurance." The commission also found that the 

treatment was reasonable, necessary and related to his work 

injury. Credible evidence in the record supports these 

findings. Accordingly, we will not disturb the commission's 

ruling that Marriott was responsible for the medical treatment 

provided by these doctors and their referrals. 

- 8 -
 For the reasons stated above, the decision of the 

commission is affirmed. 

Affirmed.

- 9 -