COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Senior Judge Hodges 

Argued at Alexandria, Virginia 

UNITED TRUCK WASH AND 

 CONTINENTAL INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1275-98-4 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 9, 1999 

KENNETH L. JOHNSON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Jonathan S. Rochkind for appellants. 

 Craig A. Brown (Lawrence J. Pascal; 

Ashcraft & Gerel, on brief), for appellee. 

 In this appeal, United Truck Wash ("employer") and 

Continental Insurance Company ("insurer") contend the Workers' 

Compensation Commission erred in finding that: (1) Kenneth L. 

Johnson ("claimant") was not capable of performing pre-injury 

work duties after April 8, 1997; and (2) the claimant had 

suffered a wage loss between May 7, 1997 and November 1997. 

We disagree and affirm. 

 On appeal, we review the evidence in the light most 

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

v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

Claimant began working for United Truck Wash as a bay attendant 

in September of 1994. As a bay attendant, claimant washed trucks 

eight hours every work-day. Claimant's duties required him to be 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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on his feet, bending, squatting, and climbing for much of the 

day. On February 22, 1995, claimant sustained an injury to both 

knees and his left forearm when he tripped over a cord and fell. 

 On May 7, 1997, employer filed an application for hearing, 

seeking to terminate total disability benefits claimant had 

received since January 29, 1997. Based on various medical 

reports by claimant's physician, Dr. Walter Rabhan, employer and 

insurer alleged that claimant was able to return to his 

pre-injury employment on April 8, 1997. 

 On January 14, 1998, citing claimant's commencement of 

employment at a restaurant on May 12, 1997 and several of Dr. 

Rabhan's reports, a deputy commissioner found that claimant had 

recovered from his compensable injury and had been approved for 

pre-injury employment without restrictions on April 8, 1997. 

Accordingly, the deputy commissioner terminated claimant's 

benefits effective May 7, 1997. 

 The full commission reversed, finding that employer and 

insurer failed to meet their burden of proving by a preponderance 

of the evidence that claimant was capable of performing his 

regular duties beginning April 8, 1997 and continuing thereafter. 

 The commission specifically stated: 

 [i]t appears from the medical evidence 

presented that the claimant did not remain 

capable of performing his regular duties 

since April 8, 1997. At times, Dr. Rabhan 

instructed the claimant to refrain from 

putting pressure or kneeling on his knee. 

This suggests that the recommendation for 

return to work was not without limitations. 

Moreover, the claimant was totally 
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incapacitated as a result of surgery in 

November 1997. 

 The commission indefinitely reinstated payment of temporary 

total disability benefits to claimant as of May 8, 1997. 

Employer and insurer appeal this decision. 

 Findings of fact by the commission are conclusive and 

binding on appeal when supported by credible evidence. Code 

§ 65.2-706; Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 

229, 409 S.E.2d 824, 826 (1991). When reviewing such findings, 

we will not "retry the facts before the Commission nor do we 

review the weight, preponderance of the evidence, or the 

credibility of witnesses." Caskey v. Dan River Mills, Inc., 225 

Va. 405, 411, 302 S.E.2d 507, 510 (1983). So long as credible 

evidence supports the commission's findings, the fact that 

contrary evidence may be found in the record is of no 

consequence. Manassas, 13 Va. App. at 229, 409 S.E.2d at 826. 

If no credible evidence supports the commission's findings of 

fact, "'its findings are not binding on us and the question of 

the sufficiency of the evidence becomes one of law.'" Stocks v. 

Fauquier County School Bd., 222 Va. 695, 698, 284 S.E.2d 588, 589 

(1981) (quoting Goodyear v. Watson, 219 Va. 830, 833, 252 S.E.2d 

310, 312 (1979)). 

 "A finding based upon conflicting expert medical opinions is 

one of fact which cannot be disturbed . . . ." Virginia Dep't of 

State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 

(1985). See Johnson v. Capitol Hotel, 189 Va. 585, 588, 54 
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S.E.2d 106, 107-08 (1949) (stating that a finding of the 

commission resting on conflicting medical testimony is a finding 

of fact). This rule also applies when "a sole expert gives 

conflicting opinions." Chandler v. Schmidt Baking Co., 228 Va. 

265, 268, 321 S.E.2d 296, 298 (1984). "It is not our function, 

but the Commission's, to weigh conflicting evidence, and when 

there is credible evidence to support the Commission's findings, 

we are bound thereby." Id.

 The medical evidence before the commission was in conflict. 

 The record reveals that Dr. Rabhan examined claimant on seven 

occasions from April 2, 1997 until claimant underwent a surgical 

procedure in November of 1997. During this period of time, Dr. 

Rabhan recommended or indicated that claimant could carry out 

"full activities" in three of his post-examination reports. In 

five reports, however, Dr. Rabhan noted tenderness in claimant's 

left knee. On two occasions Dr. Rabhan indicated that claimant 

should refrain from putting pressure on his left knee. On one 

such occasion, the doctor instructed claimant that he should both 

"keep pressure off the knee" and "continue full activities."1

Further, Dr. Rabhan excused claimant from work from November 20 

 

 1The full report provides: 

 Plan: I told him to keep pressure off the 

knee. He can continue full activities. I 

would only explore this area and remove the 

Mytec if his symptoms don't improve. They 

have not really improved in the last year but 

I want to see if he can't get along with this 

as is. Return in two months for recheck. 
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to December 1, 1997 so that he might recover from his surgery. 

 In light of the conflicting medical evidence, we treat the 

commission's determination as to whether claimant was capable of 

returning to pre-injury duties after April 8, 1997 as a finding 

of fact. As such, the commission's resolution of the conflicting 

evidence in favor of claimant must be upheld if supported by 

credible evidence. Based on Dr. Rabhan's instructions to keep 

pressure off claimant's left knee and on claimant's total 

incapacity as a result of surgery in November of 1997, we find 

credible evidence to support the commission's finding that 

claimant was not able to fully perform the duties of his 

pre-injury employment. See Celanese Fibers Co. v. Johnson, 229 

Va. 117, 120, 326 S.E.2d 687, 690 (1985). 

 Employer and insurer also contend that the commission erred 

in finding that claimant had suffered a wage loss between May 7, 

1997 and November 1997. The contention is without merit. 

 The only issues decided by the full commission in this case 

were whether claimant "was capable of returning to his pre-injury 

employment on April 8, 1997" and whether the employer's 

application for hearing should have been rejected as untimely. 

Neither employer nor insurer raised an issue as to whether 

claimant had suffered a wage loss before the full commission and 

the commission did not address the issue. The issue on appeal is 

therefore barred. Cibula v. Allied Fibers & Plastics, 14 Va. 

App. 319, 323, 416 S.E.2d 708, 710 (1992). 
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 Accordingly, we affirm the commission's award. 

 Affirmed.