COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Decker, Judges Petty and Huff 

Argued at Richmond, Virginia 

CYNTHIA COLYER ALLEN 

 MEMORANDUM OPINION* BY 

v. Record No. 0275-19-2 JUDGE WILLIAM G. PETTY 

 OCTOBER 8, 2019 

COUNTY OF HENRICO PUBLIC SCHOOLS AND 

 VIRGINIA ASSOCIATION OF COUNTIES GROUP 

 SELF-INSURANCE 

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 Norman A. Thomas (Jeffrey R. Allen; Norman A. Thomas, PLLC, 

on briefs), for appellant. 

 Brian J. McNamara (Ford Richardson, PC, on brief), for appellees. 

 Cynthia Colyer Allen (claimant) argues on appeal that the functional capacity evaluation 

and permanent partial disability rating used by Dr. Desai to form the basis of his opinion should be 

ignored because it does not take into account her shoulder injury. Accordingly, she argues that the 

Commission erred in accepting the doctor’s rating in its entry of the award for permanent partial 

disability benefits for claimant. For the following reasons, we disagree and affirm the decision of 

the Commission. 

I. BACKGROUND 

Because the parties are fully conversant with the record in this case and this 

memorandum opinion carries no precedential value, we recite only those facts and incidents of 

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal. 

“Under our standard of review, when we consider an appeal from the Commission’s decision, we 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

UNPUBLISHED 
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must view the evidence in the light most favorable to the party who prevailed before the 

commission.” K & K Repairs & Const., Inc. v. Endicott, 47 Va. App. 1, 6 (2005). 

Claimant experienced a compensable injury by accident arising out of and in the course 

and scope of her employment in 2016. The claim was accepted, and an award was entered, 

providing temporary total disability benefits and lifetime medical benefits for a left wrist 

fracture. Claimant returned to work with the employer at a wage equal to or greater than the 

pre-injury average weekly wage, and claimant’s temporary total disability benefits were then 

terminated by agreement of the parties. 

Claimant filed claims for benefits in May 2017 and September 2017, seeking to add 

claimant’s left radius, left wrist, and left shoulder as compensable body parts. The parties agreed 

to add the left radius, left wrist, and left shoulder as accepted body parts. Specifically, the parties 

agreed that claimant sustained a “left frozen shoulder” as a compensable consequence of her 

2016 work accident. Employer agreed to pay the claimed medical expenses associated with the 

left frozen shoulder and reimburse claimant and her medical insurer for the same. This 

agreement resolved the issues raised in the claims for benefits filed in May and September. A 

stipulated order memorializing this agreement was entered by the Commission in October 2017. 

Claimant underwent a functional capacity evaluation (FCE) and permanent partial 

disability (PPD) rating in October 2017. The report of that FCE and PPD rating was endorsed by 

the treating physician, Dr. Desai. The PPD rating provided for a 2% permanent impairment of 

claimant’s left upper extremity—that is, her arm. 

Employer sought to enter a revised award agreement for PPD based on the PPD rating, 

but claimant refused to sign it. Therefore, employer requested a hearing pursuant to Code 

§§ 65.2-702 (failure to reach agreement) and 65.2-708 (change in condition), in order to resolve 

the issue of claimant’s entitlement to PPD benefits. At the hearing, employer entered claimant’s 
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medical designation report as well as the FCE into evidence. Claimant testified and entered into 

evidence a document from the “OrthoInfo” website, which generally discussed distal radial 

fractures. No additional evidence was presented by claimant regarding any permanent 

impairment to her shoulder. 

Following the hearing, the deputy commissioner entered an award for PPD based on the 

2% rating to claimant’s left upper extremity. The full Commission affirmed the deputy 

commissioner’s ruling. This appeal followed. 

II. ANALYSIS 

Claimant argues that employer failed to meet the burden of proof that claimant had a 2% 

permanent partial impairment rating to her left upper extremity. Claimant argues that the FCE and 

PPD rating used by Dr. Desai to form the basis of his opinion should be ignored because it does not 

take into account her shoulder injury. Accordingly, she argues that the Commission erred in 

accepting the doctor’s rating in its entry of the award for PPD benefits for claimant. We disagree. 

A. Burden of Proof 

Before discussing the decision of the Commission, we must address the appropriate burden 

of proof in a workers’ compensation claim. It is fundamental that when seeking benefits under the 

Workers’ Compensation Act, a claimant always bears the burden of proof. 

The burden of proving a case beyond speculation and conjecture is 

on claimant. This means that claimants must establish the 

employment relationship, the work-connection of their injuries, the 

causal relationship between a work connected injury and their 

disabilities, the extent of their disabilities, and all the other facets of 

their claims by a preponderance of the evidence[.] 

12 Arthur Larson et al., Larson’s Workers’ Compensation Law § 130.06(3)(a) (2019). See 

Virginia Dep’t of Transp. v. Mosebrook, 13 Va. App. 536, 537 (1992) (“The burden [of proof] is 

upon a claimant to prove by a preponderance of the evidence that he sustained a compensable 

injury” which requires proof of an accident and an injury caused by that accident. (emphasis 
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added)); Williams v. Auto Brokers, 6 Va. App. 570, 571-72 (1988) (“One seeking compensation 

retains the burden of proving by a preponderance of the evidence that he sustained a compensable 

injury.”). 

Before the Commission and on appeal to this Court, both parties took the position that, as 

the party requesting a hearing, employer bore the burden of proof. However, the assignment of the 

burden of proof is a purely legal question. Mulford v. Walnut Hill Farm Group, 282 Va. 98, 111 

(2011). Furthermore, while a party can concede the facts, we are not bound by a concession of law. 

“Our fidelity to the uniform application of law precludes us from accepting concessions of law 

made on appeal.” Logan v. Commonwealth, 47 Va. App. 168, 172 (2005) (en banc). Thus, despite 

employer’s acceptance of the burden of proof, we will evaluate the decision of the Commission 

recognizing that claimant bore the burden of proving her entitlement to PPD compensation. 

B. Compensable Injury 

The Commission did not err in accepting the doctor’s rating in its entry of the award for 

PPD benefits for claimant. Claimant did not offer medical evidence that she was entitled to more 

than a 2% impairment rating for her injured arm and accordingly failed to meet the burden of proof 

to establish compensable injury and PPD beyond what was outlined in the FCE. 

“[I]n order to obtain benefits under Code § 65.2-503 for the loss of use of a particular 

body member, claimant must establish that [s]he has achieved maximum medical improvement 

and that [her] functional loss of capacity be quantified or rated.” Cafaro Const. Co. v. Strother, 

15 Va. App. 656, 661 (1993). “By statute, the commission’s award is conclusive and binding on 

this Court as to all questions of fact when those findings are based on credible evidence.” K & K 

Repairs, 47 Va. App. at 6; Code § 65.2-706. Furthermore, “the existence of ‘contrary 

evidence . . . in the record is of no consequence if credible evidence supports the commission’s 

finding.’” Id. (quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229 (1991)). 
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Here, the Commission’s award was based on credible evidence. Dr. Desai adopted the 

findings of the FCE, establishing that claimant suffered a 2% permanent disability attributable to 

the compensable accident and that claimant reached maximum medical improvement. The only 

“contrary evidence” claimant offered was a document from the “OrthoInfo” website, which only 

generally discussed distal radial fractures and was not specific to claimant’s condition. 

Specifically, claimant offered no evidence that she suffered a permanent impairment in excess of 

the 2% rating set out in the FCE. The Commission did not err in holding that this “contrary 

evidence” was of no consequence because credible evidence supports the Commission’s finding. 

See id. 

The FCE and impairment summary include consideration of claimant’s shoulder along 

with her hand, wrist, and elbow. Notably, the FCE references multiple instances of claimant’s 

report of pain or stiffness in her left shoulder while performing certain tests/exercises for the 

evaluation. Despite all these notations, Dr. Desai signed the evaluation, agreeing with the 

impairment rating of “N/A”—that is, no applicable impairment rating—for claimant’s shoulder 

and 2% for claimant’s wrist.1 Additionally, Dr. Matthew Walker, the orthopedic surgeon 

treating claimant’s shoulder, did not provide an opinion contradicting Dr. Desai’s opinion. 

Simply put, it was claimant’s burden to establish any permanency rating beyond 2% maximum 

medical improvement, and she failed to do so. Accordingly, based on the evidence presented to 

it, the Commission did not err in holding that Dr. Desai’s opinion was founded on a complete 

assessment of claimant’s permanent partial impairment to her left arm. The Commission’s 

award was based on uncontradicted credible evidence—the medical evidence before the 

 1

 To the extent that the notation “N/A” regarding claimant’s shoulder injury is 

ambiguous, it was, as discussed above, claimant’s burden to establish that the FCE was deficient. 

This she did not do. Furthermore, to the extent the Commission concluded that his notation 

meant that claimant did not have any residual impairment to her shoulder, that conclusion 

constitutes a factual finding to which we must defer. 
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Commission established that claimant had reached maximum medical improvement and suffered 

2% permanent partial impairment to her left arm. 

III. CONCLUSION 

 For the foregoing reasons, we affirm the decision of the Commission. 

Affirmed.