COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

CHAPMAN LUMBER COMPANY, INC. AND 

 WOOD PRODUCTS OF VIRGINIA GROUP 

 SELF-INSURANCE ASSOCIATION 

 MEMORANDUM OPINION* BY 

v. Record No. 1024-97-1 JUDGE JAMES W. BENTON, JR. 

 NOVEMBER 18, 1997 

GREGORY W. GREENE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Bradford C. Jacob (Taylor & Walker, P.C., on 

brief), for appellants. 

 Randolph A. Raines, Jr. (Ferguson, Rawls, 

MacDonald, Overton & Grissom, P.C., on 

brief), for appellee. 

 Chapman Lumber Company, Inc. appeals the Workers' 

Compensation Commission's award of benefits to Gregory W. Greene 

for his work-related injury by accident. Chapman Lumber contends 

that the commission erred (1) in admitting hearsay evidence 

concerning a doctor's referral; (2) in finding Chapman Lumber 

responsible for certain medical treatment; and (3) in awarding 

temporary total disability benefits from March 20, 1996 and 

continuing. For the reasons that follow, we affirm the award. 

 I. 

 Upon appellate review, this Court must construe the evidence 

in the light most favorable to the party prevailing below. In 

addition, we must uphold the commission's findings of fact when 

 

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

designated for publication. 
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they are supported by credible evidence. See Lynchburg Foundry 

Co. v. Goad, 15 Va. App. 710, 712, 427 S.E.2d 215, 217 (1993); 

Jensen Press v. Ale, 1 Va. App. 153, 157, 336 S.E.2d 522, 524 

(1985). 

 The evidence proved that Greene was employed by Chapman 

Lumber as the operator of a front-end loader. On April 5, 1995, 

Greene was climbing onto the loader when he slipped and fell to 

the ground, landing on a piece of pine bark and "snapping" his 

knee. Greene told a supervisor about the injury but said that he 

would continue to work because he could not afford to take any 

time off. 

 Three weeks later, Greene called William Chapman, the 

president of Chapman Lumber, and told Chapman that Greene's knee 

would not bear his weight. Chapman gave Greene the names of two 

doctors. When Greene called the first doctor's office, he was 

informed that the doctor would not be able to see him for ten 

days. Greene called the second doctor and was told that the 

doctor would be out for one to two weeks. Upon receiving these 

responses, Greene again called Chapman. Chapman told Greene that 

if he was "in that much pain," he should use his health insurance 

and go to the emergency room. 

 Greene went to a hospital emergency room where he was 

referred to Dr. Smith, an orthopedic surgeon. Dr. Smith examined 

Greene and ordered an MRI. After reviewing the MRI, Dr. Smith 

diagnosed a peripheral tear of the posterior body of the medial 
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meniscus and a possible tear of the anterior cruciate ligament 

and recommended surgery. Greene testified that Dr. Smith gave 

him a choice of physicians in two locations, Greenville and 

Norfolk. When Greene chose Greenville because of transportation 

considerations, Dr. Smith referred Greene for surgery to Dr. 

Barsanti. Later, upon learning that he would not be able to 

obtain transportation to Greenville, Greene testified that he 

called Dr. Smith and asked if he could instead go to Dr. Persons 

in Suffolk. Greene testified that Dr. Smith told him to take the 

referral letter Dr. Smith had written to Dr. Barsanti and give it 

to Dr. Persons. At the hearing, the deputy commissioner ruled 

that Greene's testimony regarding his telephone conversation with 

Dr. Smith about his request to see Dr. Persons was inadmissible 

because it was hearsay. 

 After reviewing the MRI, Dr. Persons performed 

reconstructive surgery on Greene's knee on July 11, 1995. On 

January 11, 1996 and March 20, 1996, Dr. Persons diagnosed 

further complications as a result of the initial injury and 

recommended Greene undergo a second arthroscopic surgery in the 

summer of 1996. On March 20, Dr. Persons noted that Greene could 

not perform "any manual labor until this problem is fixed." 

 The deputy commissioner ruled that Chapman Lumber was not 

responsible for the care rendered by Dr. Persons because no 

evidence proved that Dr. Smith referred Greene to Dr. Persons. 

The deputy commissioner awarded Greene compensation for temporary 
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total disability from April 24, 1995 until March 20, 1996. The 

deputy commissioner rendered his decision on September 30, 1996. 

 Following that decision, the medical reports of Dr. Richard T. 

Holden were tendered to the commission.1

 Upon review, the commission ruled that the hearsay testimony 

concerning Dr. Smith's referral to Dr. Persons was admissible. 

Therefore, the commission held that Dr. Persons' treatment was 

authorized and that Chapman Lumber was responsible for the care 

rendered by Dr. Persons. The commission also found that Greene 

remained totally disabled after March 20, 1996 and awarded him 

benefits continuing from that date "until circumstances require a 

modification." 

 II. 

 Chapman Lumber first contends that the hearsay testimony 

concerning Dr. Smith's referral of Greene to Dr. Persons was 

inadmissible. We disagree. The principle is well established 

that "the Commission is not governed by common-law rules of 

evidence and . . . it has discretion to give probative weight to 

hearsay statements in arriving at its findings of fact." Chavis 

Transfer v. Dicks, 229 Va. 548, 555, 331 S.E.2d 449, 453 (1985). 

See also Williams v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 

(1958) (acknowledging that "[t]he . . . Commission is not 

 

 1Dr. Holden operated on Greene's knee in November 1996. 

 However, the record contains no indication that the commission 

accepted Dr. Holden's reports for filing. Indeed, the commission 

in its April 11, 1997 review decision did not refer to those 

records. 
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governed in its decisions by common law rules of evidence, and 

. . . that hearsay statements are properly admissible before 

it."); Derby v. Swift & Co., 188 Va. 336, 341, 49 S.E.2d 417, 419 

(1948) (holding that "[h]earsay evidence is admissible under the 

Workmen's Compensation Act and is used as the basis of an 

award."). 

 Consistent with these principles, the commission's rules 

provide, in part, as follows: 

 Except for rules which the Commission 

promulgates, it is not bound by statutory or 

common law rules of pleading or evidence nor 

by technical rules of practice. 

 The Commission will take evidence at 

hearing and make inquiry into the questions 

at issue to determine the substantial rights 

of the parties, and to this end, hearsay 

evidence may be received. (Emphasis added.) 

Virginia Workers' Compensation Commission Rule 2.2. On numerous 

occasions this Court has referred to the commission's rule 

permitting hearsay and has held that hearsay evidence is 

admissible before the commission. See Cox v. Oakwood Mining, 

Inc., 16 Va. App. 965, 969, 434 S.E.2d 904, 907 (1993); Baker v. 

Babcock & Wilcox Co., 11 Va. App. 419, 426, 399 S.E.2d 630, 634 

(1990); Franklin Mtg. Corp. v. Walker, 5 Va. App. 95, 99, 360 

S.E.2d 861, 864 (1987), aff'd en banc, 6 Va. App. 108, 367 S.E.2d 

191 (1988). 

 The commission, as the finder of fact, was entitled to 

determine the weight and credibility of Greene's testimony. See

Uninsured Employer's Fund v. Mounts, 24 Va. App. 550, 559, 484 
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S.E.2d 140, 144 (1997). The commission found that Greene's 

testimony was credible. Moreover, the evidence proved that Dr. 

Persons' medical records contained the referral letter from Dr. 

Smith to Dr. Barsanti and contained Dr. Smith's medical reports 

concerning Greene. That evidence corroborated Greene's 

testimony. Therefore, we cannot say that the commission's 

finding was not supported by credible evidence. 

 Chapman Lumber further argues that when the commission ruled 

on review that the hearsay evidence was admissible, the 

commission was required to remand the case for additional 

evidence. We disagree. The commission found that "apart from 

the issue of the truth or falsity of the attributed statement by 

Dr. Smith," Greene was authorized to seek treatment with Dr. 

Persons. Credible evidence in the record supports that finding. 

 Furthermore, the record established that Greene disclosed in his 

pre-hearing deposition that Dr. Smith referred him for treatment. 

 The record also established that Dr. Persons treated Greene and 

that Dr. Persons' files contained Dr. Smith's reports and 

referral letter. Thus, the issue regarding the referral was not 

a surprise. 

 In addition, the commission's rule allowing hearsay is so 

clear and firmly established that Chapman Lumber's objection 

seeking to bar the evidence was meritless, as was the deputy 

commissioner's ruling. Moreover, after the evidentiary hearing, 

Chapman Lumber had the opportunity to question Dr. Smith when his 
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deposition was taken and failed to pursue the issue of the 

referral. We find no error in the commission's ruling. 

 III. 

 "Whether the employer is responsible for medical expenses 

 . . . depends upon . . . whether the treating physician made a 

referral to the patient." Volvo White Truck Corp. v. Hedge, 1 

Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). 

 Greene testified that Dr. Smith offered him a choice between 

physicians in Norfolk or Greenville. Greene chose Greenville 

because of transportation concerns. However, Greene testified 

that when his transportation situation changed, prohibiting 

travel to Greenville to see Dr. Barsanti, Greene then telephoned 

Dr. Smith to ask if he could see Dr. Persons instead. Dr. Smith 

told Greene that he should give Dr. Persons the letter Dr. Smith 

had written to Dr. Barsanti. 

 Greene's testimony, along with the corroborating evidence 

found in Dr. Persons' files, supports the commission's finding 

that Greene received a referral from Dr. Smith to be treated by 

Dr. Persons. Therefore, the commission did not err in ruling 

that Chapman Lumber was responsible for the medical treatment 

provided by Dr. Persons. 

 IV. 

 In determining that Greene was entitled to temporary total 

disability benefits from March 20, 1996 and continuing, the 

commission relied upon Greene's testimony and Dr. Persons' 
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medical reports and deposition. 

 Dr. Persons testified that when he saw Greene on March 20, 

1996, Greene still had "a limited range of motion" in his knee 

and was "having some painful popping coming from the back of his 

knee." Dr. Persons' March 20 report indicated that Greene was 

still suffering discomfort and tenderness and was using a cane. 

In view of Greene's continuing problems, Dr. Persons recommended 

additional surgery and stated, "At this time I don't think he is 

able to do any manual labor until this problem is fixed." 

 Greene's testimony is further evidence in support of the 

commission's decision that he was unable to return to his 

pre-injury employment after March 20, 1996. At the hearing, 

Greene testified that he was having trouble going up and down 

steps, his knee was swelling, and he could not straighten his leg 

completely. Greene testified that sitting for long periods of 

time caused pain and walking on uneven terrain caused sharp pain 

in his knee. 

 For these reasons, we affirm the commission's finding that 

Greene was entitled to disability benefits commencing April 24, 

1995 and continuing. Because the record does not establish 

whether Dr. Holden's reports were accepted for filing by the 

commission, we remand the case to the commission for a 

determination whether those reports were properly filed and, if 

so, whether the "circumstances require a modification" of 

benefits after January 23, 1997. 
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 Affirmed and remanded.