COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Dec ker, Judges Petty and Huff Argued at Richmond, Virginia

CYNTHIA COLYER ALLEN MEMORANDUM OPINION * BY v. Record No . 0275-19-2 JUDGE W ILLIAM G. PETTY OCTOBER 8, 2019 COUNTY OF HENRICO PUBLIC SCHOOLS AND VIRGINIA ASSOCIATIO N OF COUNTIES GROUP SELF-INSURANCE

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Norman A. Thomas (Jeffrey R. A llen; Norman A . Thomas, PLLC, on briefs), for appellant. Brian J. McNamara (Ford Richardson, PC, on brief), for appell ees.
Cynthia Colyer Allen (claimant) argues on appeal that the func tional capacity evaluation and permanent partial disability r ating used by Dr . Desai to fo rm the basis of his opinion should be ignored because it does not take into account her shoulder inju ry. 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, w e disagree and affirm the decision of the Commission.
I. BACKGROUND Because the parties are fully c onversant with the record in thi s case and this memorandum opinion carries no preced ential value, we recite onl y 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, w hen we consider an appeal from the Commission’s decision, we

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - must view the evidence in the li ght most favorable to the party who prevailed before the commission.”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 compens able injury by accident arising o ut of and in the course and scope of her employment in 2016. The claim was accepted, and an award was entered, providing temporary total disabi lity benefits and lifetime medi cal benefits for a left wrist fracture. Claimant returned to w ork with the employer at a wag e equal to or greater than the pre-injury average weekly wage, a nd claimant’s temporary total disability benefits were then terminated by agreement of the parties. Claimant filed claims for be nefits in May 2017 and September 20 17, seeking to add claimant’s left radius, left w rist, and left shoulder as compen sable body parts. The parties agreed to add the left radius, left wrist, and left shoulder as accept ed body parts. Specifically, the parties agreed that claimant sustaine d a “left frozen shoulder” as a co mpensable 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 ins urer for the same. This agreement resolved the issues raised in the claims for benefits filed in May and September. A stipulated order memorializing t his agreement was entered by th e Commission in October 2017. Claimant underwent a functional capacity evaluation (FCE) and p ermanent partial disability (PPD) rating in Oct ober 2017. The report of that FC E 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 revise d award agreement for PPD base d on the PPD rating, but claimant refused to sign it. T herefore, employer requested a hearing pursuant to Code §§ 65.2-702 (failure to reach agree ment) and 65.2-708 (change i n condition), in order to resolve the issue of claimant’s entitle ment to PPD benefits. At the he aring, employer entered claimant’s- 3 - medical designation report as well as the FCE into evidence. C laimant testified and entered into evidence a document from the “OrthoInfo” website, which general ly discussed distal radial fractures. No additional evidence was presented by claimant re garding any permanent impairment to her shoulder. Following the hearing, the deputy c ommissioner entered an award for PPD based on the 2% rating to claimant’s left uppe r extremity. The full Commiss ion affirmed the deputy commissioner’s ruling. This appeal followed.
II. ANALYSIS Claimant argues that employer failed to meet the burden of proo f that claimant had a 2% permanent partia l 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 s hould be ignored because it does not take into account her shoulder inj ury. Accordingly, she argues that the Commission erred in accepting the doctor’s rating in its entry of the award for PPD benefits for claim ant. We disagree. A. Burden of Proof Before discussing the decision of the Commission, we must addre ss the appropriate burden of proof in a workers’ compensat ion claim. It is fundamental t hat when seeking benefits under the Workers’ Compensation Act, a clai mant always bears the burden o f proof. The burden of proving a case be yond speculation and conjecture is on claimant. This means that c laimants 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 oth er facets of their claims by a preponderance of the evidence[.] 12 Arthur Larson et al., Larson’s Workers’ Compensation Law § 1 30.06(3)(a) (2019). See Virginia Dep’t of Transp. v. Mose brook, 13 Va. Ap p. 536, 537 (1 992) (“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 cause d by that accident. (emphasis- 4 - added)); Williams v. Auto Broker s, 6 Va. App. 57 0, 571-72 (1988 ) (“One seeking compensation retains the burden of p roving by a preponderance of the evidenc e that he sustaine d a compensable injury.”). Before the Commission and on app eal to this Court, both parties took the position that, as the party requesting a hearing , employer bore t he burden of pro of. 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 a re not bound by a co ncession of law. “Our fidelity to the uniform app lication of law precludes us fr om accepting concessions of law made on appeal.” Loga n v. Commonwealth, 47 V a. App. 168, 172 ( 2005) ( en banc ). Thus, despite employer’s acceptance of the bur den of proof, we will evaluate the decision of the Commission recognizing that clai mant bore the burden of proving her entitl ement to PPD compensation. B. Compensable Injury The Commission did not err in acce pting the doctor’s rating in its entry of the award for PPD benefits for claimant. Cl aimant did not offer medical evid ence 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 compensabl e injury and PPD bey ond what was outline d in the FCE. “[I]n order to obtain benefits under Code § 65.2-503 for the lo ss of use of a particular body member, claimant must establi sh that [s]he has achieved ma ximum medical improvement and that [her] functional loss of capacity be quantified or rat ed.” Cafaro Const. Co. v. Strother, 15 Va. App. 656, 661 (1993). “By statu te, the commission’s awa rd 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 e vidence supports the commission’s finding.’” Id. (quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229 (1991)).- 5 - Here, the Commission’s award w as based on credible evidence. D r. Desai adopted the findings of the FCE, establishing that claimant suffered a 2% p ermanent disability attributable to the compensable accident and tha t claimant reached maximum medi cal improvement. The only “contrary evidence” claimant offered was a document from the “O rthoInfo” website, which only generally discussed distal radia l fractures and was not specifi c to claimant’s condition. Specifically, claimant offered no e vidence that she suffered a permanent impairment in excess of the 2% rating set out in the F CE. The Commission did not err i n holding that this “contrary evidence” was of no consequence because credible evidence suppo rts the Commission’s finding. See id. The FCE and impairment summary include consideration of claiman t’s shoulder along with her hand, wrist, and elbow . Notably, the FCE references m ultiple instances of claimant’s report of pain or stiffness in he r left shoulder while performi ng certain tests/exercises for the evaluation. Despite all these not ations, Dr. Desai signed the evaluation, agreeing with the impairment rating of “N/A”—that is, no applicable impairment ra ting—for claimant’s shoulder and 2% for claimant’s wrist. 1 Additionally, Dr. Matthew Wal ker, the orthopedic surgeon treating claimant’s shoulder, d id not provide an opinion contra dicting Dr. Desai’s opinion. Simply put, it was claimant’s burden to establish any permanenc y rating beyond 2% maximum medical improvement, and she failed to do so. Accordingly, bas ed on the evidence presented to it, the Commission did not err in ho lding that Dr. Desai’s opin ion was founded on a complete assessment of claimant’s permanent partial impairment to her le ft arm. The Commission’s award was based on uncontradicted c redible evidence—the medical evidence before the

1 To the extent that the notation “ N/A” regarding claimant’s sho ulder injury is ambiguous, it was, as discussed above, claimant’s burden to est ablish 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 a ny residual impairment to her shoulder, that conclusion constitutes a factual findi ng to which we must defer.- 6 - Commission established that claim ant had reached maximum medica l improvement and suffered 2% permanent partial impa irment to her left arm.
III. CONCLUSION For the foregoing reasons, we affirm the decision of the Commi ssion. Affirmed.