                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia


DESPINA H. MILEOS
                                           MEMORANDUM OPINION * BY
v.   Record No. 3132-02-4                  JUDGE D. ARTHUR KELSEY
                                                JULY 29, 2003
VENUS PIZZA AND
 ERIE INSURANCE EXCHANGE


       FROM THE VIRIGINIA WORKERS' COMPENSATION COMMISSION

          R. Craig Jennings (Brandt, Jennings, Snee,
          Dupray & Parrish, P.L.L.C., on brief), for
          appellant.

          Susan A. Evans (Siciliano, Ellis, Dyer &
          Boccarosse, on brief), for appellees.


      Despina H. Mileos appeals a decision from the Workers'

Compensation Commission, claiming it erred by terminating her

benefits on the grounds that (i) she could have resumed her

pre-injury employment duties in November 1999, and (ii) even if

she could not resume full duties, she in fact went back to work

and voluntarily quit without justification in June 2000.     We

affirm, finding persuasive the commission's second, alternative

ground for its holding.     We remand the matter to the commission,

however, to amend its order to recognize November 17, 2000, as

the effective date of termination.


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

     On appeal, we view the evidence in the light most favorable

to the prevailing party before the commission.     Clinchfield Coal

Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d 538, 539 (2003);

Tomes v. James City (County Of) Fire, 39 Va. App. 424, 429, 573

S.E.2d 312, 315 (2002).

     On April 22, 1999, Mileos suffered a compensable injury by

accident when her left hand was caught in a dough machine at

Venus Pizza.    As a result of the accident, approximately

two-thirds of Mileos's left middle finger was amputated.     The

employer accepted the injury as compensable, and the commission

entered an award for temporary total disability.

     Mileos and her husband have owned and operated Venus Pizza

since 1983.    She took an active role in the business prior to

the accident.   Mileos explained that, prior to her accident, she

and her husband shared most of the principal duties:    We "[b]oth

do the job.    If he cut[s] the cheese, I have to wash the dishes.

If he make[s] the soup, I have to make the lasagna.    Okay.   We

both we work for a living."   Mileos's son has also helped in the

restaurant since its opening in 1983.   Prior to her accident,

either Mileos's husband, her son, or a part-time employee would

normally help Mileos (then 51 years old) lift or move heavy

objects in the restaurant.




                                - 2 -
     After the accident, Mileos testified, she still went to the

restaurant everyday and stayed there pretty much all day.     While

there, she was able to "take orders, seat people, pass out

menus, and give customers a glass of water."    She also answered

the telephone, waited on tables, and brought food out to

customer's tables.   Mileos claims, however, that she cannot

perform her pre-injury duties that involve heavy lifting.

     The deputy commissioner reviewed Mileos's extensive medical

records.   In an October 1999 report, Dr. Shepler, Mileos's

treating physician at that time, opined that Mileos was fit to

return to her pre-injury work duties without restriction.     A

month later, Dr. Shepler signed a pre-injury job description,

reiterating that he saw "no limitation of her duties —— there is

no activity that will harm her or her hands."   He added a

caveat, however, that Mileos may need help if the "flour sacks"

are heavy.

     After receiving Dr. Shepler's October 1999 report, the

employer filed an application to have Mileos's temporary total

disability benefits terminated.   The employer withdrew that

application, without prejudice, after receiving the caveat about

her need for help with heavy flour sacks.

     With the employer's consent, Mileos sought additional care

from Dr. Bruce Freedman.   In January 2000, Dr. Freedman reviewed

Mileos's job description and informed the employer that Mileos

was able to return to work without restriction.   The employer

                               - 3 -
filed another application to terminate benefits but, again,

voluntarily withdrew it when Dr. Freedman amended his release a

week later.    In that amendment, Dr. Freedman put Mileos under a

25-pound lifting restriction after learning some of the flour

and vegetable sacks may weigh as much as 40 to 50 pounds.

Freedman reiterated his work release of Mileos, with the lifting

restriction, in February 2000.

        In June 2000, the employer retained Robert Hiler, a private

investigator, to conduct surveillance on Mileos.    On June 2,

2000, Hiler observed Mileos at Venus Pizza from 6:02 p.m. to

12:10 a.m. the next morning.    During that time, Mileos seated

customers, distributed menus, delivered food and drinks, waited

on take-out customers, cleaned and set tables, and operated the

cash register.

        Hiler returned on June 7 and observed Mileos from 7:03 p.m.

to 10:36 p.m.    She greeted Hiler, seated him, and brought him a

menu.    Later, she brought Hiler's food and drink, furnished his

bill, took his payment, and received a tip he left her.      During

these surveillance periods, Hiler testified, Mileos also helped

in the kitchen area by putting food on plates, preparing a

salad, and boxing and bagging takeout food.    Hiler did not

observe her lifting or attempting to lift any heavy objects.

        On November 17, 2000, the employer filed its third

application to terminate claimant's benefits.    The application

listed the following four alternative grounds for termination:

                                 - 4 -
     i.       "The employee returned to pre-injury work
              on 6/2/00 or before."

     ii.      "The employee was released to return to
              pre-injury work on 11/23/99 per
              Dr. Shepler's report dated 11/23/99."

     iii.     "The employee returned to light-duty work
              on 6/2/00 or before at an average weekly
              wage of $ unknown."

     iv.      "If the claimant is not earning wages and
              is capable of light duty, she has removed
              herself from the labor market effective
              June 2, 2000 or before."

     Shortly after receiving the employer's application, Mileos

returned to Dr. Freedman in January 2001.    Dr. Freedman noted

that he had not seen Mileos since February 2000, ten months

before.    He found that Mileos had "hyperextension changes with

subluxation of the MCP joint of the left thumb."

     Dr. Freedman again saw the claimant in July 2001 and wrote

a letter to Mileos's counsel stating, "It appears that Ms.

Mileos has finally destabilized her thumb.   I reported mild

instability in a previous visit.   I believe that this problem

has been exacerbated by the way that she uses her hand following

her injury and long finger amputation."   Mileos, Dr. Freedman

concluded, "has become functionally incapacitated . . . .    I do

not believe that she can perform the required job activities at

the restaurant."

     At a hearing on October 31, 2001, the deputy commissioner

found that Dr. Shepler released Mileos to her pre-injury job on

November 23, 1999.   Mileos's condition had improved to the point

                                - 5 -
that she could perform her pre-injury duties despite any

continuing physical impairments, the deputy commissioner held.

The deputy commissioner also based her decision on the evidence

describing the specific duties of employment prior to the

accident and Mileos's work activities observed on the

surveillance video after the accident.   The deputy commissioner

terminated Mileos's benefits effective November 23, 1999, the

date of Dr. Shepler's fit-for-duty recommendation.

     The full commission unanimously affirmed.    Though

Dr. Freedman later placed a specific weight restriction on

claimant's work, the commission pointed out that Dr. Shepler was

the treating physician in November 1999 —— the specific time

period brought into question by the employer's application.    The

commission also observed that, as an owner of the restaurant,

Mileos was in a position to direct others to perform any heavy

lifting —— just as she had before the accident.

     Like the deputy commissioner, the commission found the June

2000 surveillance videotapes to be persuasive corroborating

evidence of claimant's work abilities.   As the commission noted,

the videos show that Mileos

          simply appears to be a right-hand dominant
          individual acting accordingly. While she is
          not observed cooking or carrying trays of
          food, the claimant is seen performing the
          tasks of a restaurant proprietor such as
          answering the telephone, bringing drinks,
          condiments and putting a pizza tray on the
          table, shuffling menus, working at the cash
          register, clearing and wiping tables. She

                              - 6 -
          also folds napkins and puts down paper
          placemats. At one point she appears to be
          carrying a tray and taking a takeout order.
          . . . She is also seen in the June 7, 2000,
          tape bringing various items to a customer's
          table and taking the payment. She easily
          uses her left hand to scratch her right
          shoulder. We again observe nothing to
          indicate any favoring of the left hand other
          than what one might expect in a right-hand
          dominant individual.

     "After careful consideration," the commission held, "we

find that the evidence establishes that [Mileos] could return to

her pre-injury work" on November 23, 1999.   The commission also

made an alternative holding that, even if Mileos could not

perform all of the duties of her pre-injury work at that time,

she had nevertheless returned to light-duty work and thereafter

unjustifiably withdrew from the workplace in June 2000:

          Even if we were to find that the claimant
          was not released to regular work on November
          23, 1999, we would find that subsequent to
          that date she was performing light duty
          work. The June 2000 tapes substantiate
          this. While the claimant may not have been
          paid a salary, it is clear from the evidence
          that she was performing work at the
          restaurant on a regular basis. If she were
          not paid, it was at her election as an owner
          not to do so. We also note that as of June
          2000 there was no medical evidence that the
          claimant could not work. It was her
          testimony that after an attempt to work, she
          stopped. Her son testified that his father
          told her to stop. Based on this, we would
          also find the claimant by her own choice
          elected not to continue working at the
          restaurant after June 2000. For the reasons
          stated, the Opinion of the deputy
          commissioner is AFFIRMED.



                              - 7 -
In a footnote to its alternative holding, the commission stated

that it made "no specific finding on the claimant's work ability

after June 2000."

                                II.

     On appeal, Mileos devotes almost all of her argument to

challenging the sufficiency of the evidence underlying the

commission's finding that she recuperated enough from the accident

to perform her pre-injury job duties.   In doing so, Mileos all but

overlooks the commission's alternative holding —— one that we find

dispositive of this appeal.

     Under Code § 65.2-510(A), an employee "who refuses

employment suitable to his capacity is not entitled to any

compensation during the period of refusal unless the refusal is

justified."   Newport News Shipbuilding & Dry Dock Co. v.

Lawrence, 38 Va. App. 656, 661, 568 S.E.2d 374, 376 (2002).     The

issue ordinarily arises when an employer offers a light-duty job

to the employee, who then refuses it as unsuitable.    In a

similar vein, an employee must make a reasonable effort to

market her residual work capacity when the facts and

circumstances reveal to an objectively reasonable person that

she can return to some level of employment.   See Ridenhour v.

City of Newport News, 12 Va. App. 415, 416, 404 S.E.2d 89, 89

(1991).   These same principles equally govern the situation of

an employee who actually returns to work with the same employer,


                               - 8 -
allegedly in a light-duty capacity, and then quits claiming the

job was not suitable.

     Applying the selective-employment and residual capacity

principles to this case, we hold that, when an employee returns

to work with the employer and then quits, the employer bears the

burden of proving that the job was "suitable to the employee's

capacity."     Atlas Plumbing & Mech., Inc. v. Lang, 38 Va. App.

509, 512, 566 S.E.2d 871, 872-73 (2002) (citation omitted).    If

the employer proves suitability, the burden of proof shifts to

the employee to demonstrate that his decision to quit was

"justified."     Id. at 513, 566 S.E.2d at 873 (citing Talley v.

Goodwin Bros. Lumber Co., 224 Va. 48, 53, 294 S.E.2d 818, 821

(1982)).   "To support a finding of justification to refuse

suitable selective employment, 'the reasons advanced must be

such that a reasonable person desirous of employment would have

refused the offered work.'"     Clements v. Riverside Walter Reed

Hosp., 40 Va. App. 214, 224, 578 S.E.2d 814, 818 (2003)

(citation omitted).    Justification, or the lack of it, presents

a "question of fact" for the commission.     Gallahan v. Free Lance

Star Pub. Co., 37 Va. App. 114, 118, 554 S.E.2d 685, 686 (2001). 1



     1
       In its role as factfinder, the commission "resolves all
conflicts in the evidence and determines the weight to be
accorded the various evidentiary submissions." Bass v. City of
Richmond Police Dept., 258 Va. 103, 114, 515 S.E.2d 557, 563
(1999). When based on credible evidence, the commission's
judgments are "conclusive and binding as to all questions of
fact." Id. (quoting Code § 65.2-706(A)). Thus, unless our

                                 - 9 -
     Credible evidence supports the commission's finding that

Mileos returned to work at Venus Pizza in a suitable job and then,

without justification, quit.   The surveillance tapes show Mileos

on the job in June 2000 performing the employment tasks of a

restaurant proprietor.   Proof of her physical ability to perform

these tasks rests not only on the lack of any observable

difficulty in doing so, but also on the medical reports of

Dr. Shepler (issued in October and November 1999) and Dr. Freedman

(issued in January and February 2000).    Both had given unambiguous

opinions releasing Mileos to return to work at Venus Pizza,

subject only to a caveat prohibiting heavy lifting.   See

Ridenhour, 12 Va. App. at 416, 404 S.E.2d at 89 (recognizing that

an employee who objectively may return to light-duty employment

but effectively removes himself from the labor market is not

entitled to total disability payments).

     Mileos's self-serving decision to attribute all of the income

from Venus Pizza to her husband (and away from herself) did not

render her post-accident employment there a gratuity.   If

anything, such evidence suggests that she participated in a




review requires a de novo interpretation of law, we limit our
task on appeal to discerning whether credible evidence exists to
support the commission's decision. "If there is evidence, or
reasonable inferences can be drawn from the evidence, to support
the commission's findings, they will not be disturbed on review,
even though there is evidence in the record to support a
contrary finding." S.P. Terry Co. v. Rubinos, 38 Va. App. 624,
632, 567 S.E.2d 584, 588 (2002) (citations omitted)).

                               - 10 -
subterfuge to hide the fact of her reemployment and to provide

plausible deniability by reporting no salary income from her work.

     We also reject Mileos's argument that the commission erred

by relying on Dr. Shepler's medical opinions given the

commission's longstanding policy of rejecting "stale" evidence.

See, e.g., Meekins v. Legend Group, 1998 Va. Wrk. Comp. LEXIS

4447 (1998); Quaglio v. Lechter's, Inc., 1995 Va. Wrk. Comp

LEXIS 365 (1995).   We do not view the stale-evidence principle

as a discrete rule of law, different in substance from the

rather obvious proposition that evidence closer in time to the

relevant event may be considered more persuasive than evidence

more remote in time.   The persuasiveness of evidence does not

turn solely on timing issues.    Any number of variables, timing

being but one, may influence a factfinder's decision to

attribute differing degrees of weight to different facts.

     Suffice it to say, we defer to the commission's assessment

of the "probative weight to be accorded evidence" and, if it is

in conflict, the commission "is free to adopt that view 'which

is most consistent with reason and justice.'"    Georgia-Pac.

Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 269 (2000)

(quoting C.D.S. Const. Servs. v. Petrock, 218 Va. 1064, 1071,

243 S.E.2d 236, 241 (1978)) (bracketed material omitted).    The

commission did just that in assessing the evidence Mileos claims

was stale:



                                - 11 -
            We find nothing to indicate that these
            medical reports are stale. The allegation
            was that the claimant was released to return
            to regular work on November 23, 1999.
            Dr. [Shepler] released the claimant to
            return to work on October 23, 1999. He also
            signed a job description on November 23,
            1999. There is no medical evidence as of
            that time that the claimant could not work.
            While subsequent evidence may have been
            developed this does not mean that the
            earlier evidence is "stale."

No evidence in this case demonstrated any change in Mileos's

work capacity during the period between Dr. Shepler's 1999

opinion and the employer's November 2000 application.      The

principal evidence of her condition during this period —— the

June 2000 surveillance videos —— corroborate Dr. Shepler's

earlier opinion.

     That said, we disagree with the commission's use of

November 23, 1999, as the effective date of termination of

benefits.   With limited exceptions, Commission Rule 1.4(C)

requires an employer to continue paying benefits until the date

the employer files an application for termination.   This rule

parallels Code § 65.2-708, which prohibits the commission from

issuing a ruling having a retroactive effect on benefits paid

prior to the filing of the application.    See generally Bristol

Door Co. v. Hinkle, 157 Va. 474, 477, 161 S.E. 902, 903 (1932)

(neither an employer nor a claimant may be awarded retroactive

awards on a change of condition application); Collins v. Dept.

of Alcoholic Bev. Con., 21 Va. App. 671, 676-77, 467 S.E.2d 279,


                               - 12 -
281 (1996) (endorsing employer's concession that an application

based on change of conditions could apply only "prospectively").

     In this case, the employer filed three applications seeking

termination of benefits based upon changed circumstances.    Each

time, the employer suspended payments.   The first two

applications, filed in November 1999 and January 2000, were

voluntarily withdrawn by the employer and dismissed by the

commission.    Each time, the employer reinstated payments to

Mileos.   These payments continued through November 17, 2000, the

date of the employer's third application and the one at issue in

this appeal.

     By terminating benefits effective November 23, 1999 —— a year

before the November 17, 2000 application filing date —— the

commission created a retroactive credit to the employer in

violation of Rule 1.4(C) and Code § 65.2-708. 2   We are unaware of

any authority (and are unwilling to create any) for the principle

that a termination effective date can relate back to an earlier

application withdrawn by the employer and dismissed by the


     2
       Rule 1.4(C)(4) provides that an employer who files
successive applications need only pay compensation up to the
date of filing the first application. This principle, however,
does not apply in our case because (i) the employer voluntarily
reinstated payments after withdrawing the first two
applications, and (ii) the first two applications were formally
dismissed by orders of the commission. See, e.g., Day v.
Shenandoah Fiberglass Prods. Co., 70 O.I.C. 73, 74-75, 70 Va. WC
73, 74-75 (1991) ("If the first application had been dismissed,
the employer would have had to pay benefits to the date the
second application was filed.").

                                - 13 -
commission.   For this reason, we remand this case to the

commission to amend its order to reflect the effective date of

termination as November 17, 2000, the filing date of the

application under review.

                                III.

     Finding that credible evidence supports the commission's

decision to terminate benefits, we affirm.   We remand the matter

to the commission to amend its final order to establish November

17, 2000, as the termination date.

                                         Affirmed and remanded.




                               - 14 -
