                     COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Moon, Judges Baker, Benton, Coleman, Elder,
          Bray, Fitzpatrick and Overton
Argued at Richmond, Virginia


SHAWNEE MANAGEMENT CORPORATION AND
 LIBERTY MUTUAL INSURANCE COMPANY
                                               OPINION BY
v.   Record No. 0434-96-3                 JUDGE LARRY G. ELDER
                                            NOVEMBER 4, 1997
RHONDA C. HAMILTON


                       UPON A REHEARING EN BANC
       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           J. David Griffin (Fowler, Griffin, Coyne &
           Coyne, P.C., on brief), for appellants.

           George L. Townsend (Chandler, Franklin &
           O'Bryan, on brief), for appellee.



     Shawnee Management Corporation (employer) appeals an order

of the Workers' Compensation Commission awarding temporary total

disability benefits to Rhonda C. Hamilton (claimant).   Employer

contends that the commission erred when it concluded that

claimant's failure to entirely cease smoking cigarettes so that

she could undergo back surgery was not a "refusal" of medical

care under Code § 65.1-603(B).    Employer also contends that the

commission erred when it concluded that claimant justifiably

refused an offer of selective employment.    A panel of this Court

reversed the commission's award, holding that claimant's failure

to stop smoking completely as directed by her physicians was an

unjustified refusal of the back surgery she needed in order to

return to work.   See Shawnee Management Corp. v. Hamilton, 24 Va.

App. 151, 480 S.E.2d 773 (1997).    We granted claimant a rehearing
en banc.    For the reasons that follow, we affirm the commission's

award of benefits.

                                 I.

                                FACTS

     In October, 1991, claimant lived in Winchester, Virginia and

was employed as a crew person at a Hardee's Restaurant managed by

employer.   Claimant slipped on a wet floor in the restaurant and

injured her back.    The parties entered into a memorandum of

agreement for temporary total disability benefits.    At the time

of her accident, claimant had smoked cigarettes regularly for

twenty years.
     In January, 1993, claimant's treating physician, Dr. Zoller,

performed a "lumbar fusion" operation on claimant to treat her

back injury.    Upon admission to the hospital for the surgery,

claimant ceased smoking cigarettes entirely and maintained her

abstinence from smoking for about eighteen months.    About two

months after her surgery, claimant moved from Winchester to

Manassas, Virginia.

     Claimant's recovery from the back surgery was not smooth.

During the surgery, she suffered "fairly significant

brachioplexus injuries" to both of her arms due to the

positioning of her body during the procedure.    Her recovery from

these injuries took several months.     In addition, while

rehabilitating her back, claimant experienced intermittent but

severe pain in her back, buttocks, and legs.



                                 -2-
     On July 20, 1993, Dr. Zoller wrote to employer's insurer

that claimant "could be returned to some light duty work."    Dr.

Zoller set forth numerous restrictions on any work performed by

claimant, including a limit on claimant's driving to "20 miles,

or 30 minutes, continuously, and no more than twice daily."     On

August 11, employer sent a job description to Dr. Zoller

regarding a position it planned to offer claimant as a cashier at

a Hardee's Restaurant in Winchester.   The job description

included several accommodations to match the restrictions on

claimant's work imposed by Dr. Zoller.   Dr. Zoller approved the

job description on August 25.   On September 9, claimant declined

employer's offer to return to work in the modified cashier's

position because it required a 90 minute commute each way from

Manassas to Winchester.
     On September 13, 1993, employer filed an application for a

hearing to suspend claimant's disability benefits on the ground

that she had "refused selective employment within [her] physical

capacity."   The commission subsequently suspended claimant's

benefits, but it did so on the ground that claimant had failed to

keep it informed of her current mailing address.

     In December, 1993, claimant moved back to Winchester.

Sometime in mid-1994, she resumed smoking cigarettes to "calm her

nerves" when her son "got in trouble."   Her consumption of

cigarettes increased to two packs per day.

     On September 26, 1994, Dr. Zoller wrote that claimant




                                -3-
continued to experience pain in her back and right leg and that

he had exhausted nearly all non-surgical options to treat her

pain.    He referred claimant to Dr. Kostuik at the Johns Hopkins

Orthopaedic Center in Baltimore, Maryland for a second opinion.

        On December 8, Dr. Kostuik examined claimant, concluded that

she had "a nonunion of her fusion," and opined that she might

benefit from an "anterior innerbody fusion."    Dr. Kostuik gave

claimant "a good prognosis for recovery" if she underwent the

proposed operation.    However, Dr. Kostuik told claimant that "she

has to stop smoking and try to [lose] some weight" before he

would perform the surgery.
        On December 19, Dr. Zoller examined claimant and concurred

with Dr. Kostuik's opinion that an anterior innerbody fusion was

"appropriate" treatment.    Like Dr. Kostuik, Dr. Zoller told

claimant that quitting smoking "altogether" was a precondition of

the proposed operation.    When Dr. Zoller saw claimant again on

February 22, 1995, claimant stated that she was still smoking

cigarettes but that her consumption was "down to about 10

cigarettes a day."

        On January 3, 1995, Dr. Zoller wrote to employer's insurer

that he had reconsidered his earlier opinion that claimant was

capable of light duty work. He stated:
          I sent [claimant] back to work on July 20,
          1993 assuming that possibly work would help
          improve things, but this was probably a
          mistake, and I think, in retrospect, it
          probably would have been more worthwhile to
          keep her on with Off-Work from that time
          until the present time.



                                  -4-
                     *    *   *    *    *   *   *

                I feel that [claimant] should be
          considered off work the entire period of
          time, never having been allowed to go back to
          work.


     On February 6, 1995, claimant filed a claim with the

commission for temporary total disability benefits beginning on

September 14, 1993, the day after the suspension date of her

earlier award.   She alleged a change in condition and cited Dr.

Zoller's revised medical opinion that she "shouldn't have been

released to go back to work."     Employer raised several defenses,

including that claimant had unjustifiably refused medical

treatment by failing to quit smoking and that claimant had

refused selective employment in September, 1993.
     On June 8, 1995, a deputy commissioner held a hearing on

claimant's claim.   At the hearing, claimant testified that since

Dr. Kostuik informed her that she must quit smoking, she had

reduced her consumption of cigarettes from two packs per day to

"about a quarter" pack per day.    She testified that she was

"still continuing to try and stop altogether."      There was no

evidence in the record that employer had ever offered or that

claimant had refused any medical treatment to assist her personal

effort to stop smoking.

     The deputy commissioner denied claimant's claim.      The deputy

commissioner first held that Dr. Zoller's revised medical opinion

that claimant's disability had always been "total" constituted a




                                  -5-
change in condition.   However, the deputy commissioner also held

that claimant's failure to cease smoking entirely was an

unjustified refusal of the anterior innerbody fusion recommended

by both Dr. Kostuik and Dr. Zoller.

     Claimant appealed, and the commission reversed.    The

commission held that claimant's failure to stop smoking was not a

"refusal" of the proposed back surgery. It reasoned:
          The evidence in this case shows no such
          conscious or willful refusal [by claimant] to
          follow the treatment recommendations of her
          physicians regarding smoking. Rather, the
          evidence shows that the claimant has reduced
          her smoking habit by approximately 75%,
          without the aid of any prescribed medical or
          psychological programs, which we find
          demonstrates a substantial personal effort.
          . . . We are persuaded by this evidence that
          the claimant has made reasonable efforts that
          are continuing to try to end a habit . . .
          ingrained by usage over a period of
          approximately 24 years.

The commission also held that claimant's refusal of the cashier's

position offered to her in September, 1993, was justified because

claimant's commute at the time would have violated the driving

restrictions imposed by Dr. Zoller.    The commission entered an

award of temporary total disability benefits in favor of claimant

retroactive to December 19, 1994, the date of the examination

that prompted Dr. Zoller to revise his medical opinion.

                                 II.

                       REFUSAL OF MEDICAL CARE

     Employer argues that the commission erred when it found that

claimant had not "refused" the back surgery she needed to return



                                 -6-
to work by failing to quit smoking entirely as of the date of the

hearing.   Because credible evidence supports the commission's

finding that claimant had not refused to stop smoking, we find no

error.

     Code § 65.2-603(B) bars a claimant from receiving further

compensation if the claimant unjustifiably refuses to accept

medical services provided by the employer.   Whether or not a

claimant has "refused" medical treatment is a question of fact.

See Stump v. Norfolk Shipbuilding & Dry Dock Corp., 187 Va. 932,

934-35, 48 S.E.2d 209, 210 (1948) (treating the commission's

determination of whether a claimant has refused medical services

as a question of fact); see also Chesapeake Masonry Corp. v.

Wiggington, 229 Va. 227, 229-30, 327 S.E.2d 121, 122 (1985)

(holding that the commission's finding that the claimant

unjustifiably refused medical care was supported by credible

evidence and therefore binding on appeal).   It is fundamental

that "factual findings of the commission are binding on appeal"

if supported by credible evidence.    Spruill v. C.W. Wright

Constr. Co., 8 Va. App. 330, 332, 381 S.E.2d 359, 360 (1989); see

Code § 65.2-706(A).
          We do not retry the facts before the
          Commission nor do we review the weight,
          preponderance of the evidence, or the
          credibility of witnesses. If there is
          evidence or reasonable inference that can be
          drawn from the evidence to support the
          Commission's findings, they will not be
          disturbed by this Court on appeal, even
          though there is evidence in the record to
          support contrary findings of fact.




                                -7-
Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d

507, 510-11 (1983).

     We hold that the evidence was sufficient to support the

commission's finding that claimant's current unsuccessful attempt

to quit smoking was not a "conscious or willful refusal to follow

the treatment recommendations of her physicians regarding

smoking."   Viewing the evidence in the light most favorable to

claimant, the prevailing party below, see R.G. Moore Bldg. Corp.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990), the

evidence proves that claimant was in the midst of an ongoing,

good faith effort to end her smoking habit at the time of the

hearing before the deputy commissioner.   Claimant testified at

the hearing that she had smoked cigarettes for over 23 years.

Although she did quit smoking at the time of her first back

surgery in January, 1993, she testified that she resumed the

habit sometime in mid-1994.   The evidence shows that in the seven

months between claimant's appointment with Dr. Kostuik, when she

was first directed to quit smoking, and the hearing before the

deputy commissioner, claimant reduced her daily consumption of

cigarettes by about 87%.   Claimant testified that she was smoking

two packs of cigarettes per day at the time she first saw Dr.

Kostuik in December, 1994.    Dr. Zoller wrote in his examination

notes on February 22, 1995 that claimant had reduced her smoking

to ten cigarettes per day.    At the hearing on June 8, 1995,

claimant testified that she was smoking about a quarter of a pack



                                 -8-
per day and was still continuing her effort to "try and stop

altogether."   In addition, the record fails to establish that

claimant rejected medical treatment that would have expedited her

complete abandonment of cigarettes or that employer offered such

treatment.   In light of claimant's long history with cigarettes,

the sizable reduction in her smoking, and her testimony that she

had not abandoned her current effort to quit, credible evidence

supports the commission's finding that claimant had not "refused"

to comply with her physicians' directives to stop smoking.
                               III.

                  REFUSAL OF SELECTIVE EMPLOYMENT

     Employer also argues that claimant unjustifiably refused

selective employment when she declined the cashier position

offered to her in September, 1993.    See Klate Holt Co. v. Holt,

229 Va. 544, 545, 331 S.E.2d 446, 447 (1985); Talley v. Goodwin

Bros. Lumber Co., 224 Va. 48, 52, 294 S.E.2d 818, 820 (1982).     We

disagree.

     Relying on Dr. Zoller's revised medical opinion, the

commission concluded that claimant was totally disabled as of

December 19, 1994 and ordered benefits resumed at that date.

Based on this determination, no employment offered by employer

could possibly be suitable for claimant because claimant has no

residual capacity to work.

     Because the commission held that claimant is totally

disabled, which employer does not contest on appeal, we hold that



                                -9-
this issue of selective employment is now moot.   Once a

controversy between litigants ceases to exist, "it is the duty of

every judicial tribunal not to proceed to the formal

determination of the apparent controversy . . . ."     Hankins v.

Town of Va. Beach, 182 Va. 642, 643-44, 29 S.E.2d 831, 832

(1944).

     For the foregoing reasons, we affirm the commission's award.

                                                           Affirmed.




                              -10-
