                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia


WALTER EVERETT CHILDRESS, JR.
                                         MEMORANDUM OPINION * BY
v.       Record No. 0881-98-3         JUDGE JERE M. H. WILLIS, JR.
                                           DECEMBER 22, 1998
APPALACHIAN POWER COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           A. Thomas Lane, Jr., for appellant.
           Richard D. Lucas (Carter, Brown &
           Osborne, P.C., on brief), for appellee.



     On appeal from a decision of the Workers' Compensation

Commission, Walter Childress contends that the commission erred

(1) by holding that treatment by Dr. Gwo-Jaw Wang at the

University of Virginia was not authorized, and thus not

compensable, until August 9, 1994; (2) by refusing admission of a

letter from Childress's original treating physician as

after-discovered evidence; (3) by ruling that Childress's neck

condition is not causally related to the original compensable

accident; (4) by ruling that Childress's psychiatric condition is

not causally related to the original compensable accident; and

(5) by denying benefits for the period of January 4, 1995 through

August 22, 1995.   The employer, Appalachian Power Company

(Appalachian), has assigned cross-error to the commission's

rulings (1) that treatment by Dr. Wang was authorized and
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
compensable after August 9, 1994; (2) that the employer's

overpayment of benefits could not be offset against future

payments; and (3) that Childress was entitled to temporary total

disability benefits commencing August 23, 1995.    For the

following reasons, we affirm in part and reverse in part.

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

to the party prevailing below.     See R.G. Moore Bldg. Corp. v.

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

commission's findings of fact will be upheld if supported by

credible evidence.   See Morris v. Badger Powhatan/Figgie Int'l,

Inc., 3 Va. App. 277, 279, 348 S.E.2d 876, 877 (1986).

           I.   AUTHORIZATION OF TREATMENT BY DR. WANG

     This case, arising out of a compensable back injury on

January 27, 1985, has a long and complex history of conflict over

Childress's medical treatment.    In January 1994, a deputy

commissioner heard arguments relating to this conflict and ruled

that Dr. James C. Dunstan, Jr., would assume the duties of

Childress's primary treating physician.    On January 26, 1994, Dr.

Dunstan declined to accept Childress as a patient, because

Childress's condition involved a back injury and Dr. Dunstan

specializes in hand injuries.    On February 7, 1994, Dr. Dunstan

referred Childress to Dr. Wang, and Dr. Wang accepted Childress

as a patient.

     Upon learning that Dr. Dunstan had declined to treat

Childress, Appalachian offered Childress a panel of three



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physicians.   An additional physician, Dr. J.E. Hopkins, was added

to the panel because one of the panel physicians had retired.

Childress saw Dr. Hopkins on August 9, 1994.    Dr. Hopkins

examined Childress, but refused treatment, thus rendering that

panel defective.   The commission ruled that on August 9, 1994,

the defective panel allowed Childress to seek his own treatment.

It ruled that treatment by Dr. Wang became authorized and

compensable on that date.    Both parties have assigned error to

this finding.
     Childress contends that treatment by Dr. Wang is compensable

from January 26, 1994, the date that Dr. Dunstan refused to

accept Childress as a patient and referred him to Dr. Wang.

Appalachian contends that treatment by Dr. Wang was not

authorized at any date, because Childress never intended to see

any doctor other than one at the University of Virginia.      We

disagree with Appalachian and the commission.

     The deputy commissioner ordered Childress to see Dr. Dunstan

as his treating physician.   On February 7, 1994, Dr. Dunstan

referred Childress to Dr. Wang.   He so notified the commission

the next day.   "A long-held principle of the . . . Commission,

founded on Code § 65.1-88 [now Code § 65.2-603], is that medical

management of the claimant is to be directed by the treating

physician . . . ." Press v. Ale, 1 Va. App. 153, 158, 336 S.E.2d

522, 525 (1985).   Dr. Dunstan became Childress's treating

physician by order of the commission.   Dr. Dunstan referred



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Childress to Dr. Wang, a more suitable physician.      Appalachian is

responsible for the care provided by Dr. Wang subsequent to the

date of referral, February 7, 1994.

                      II.   CAUSATION OF NECK INJURY

        The original compensable injury was to Childress's lower

back.    The initial report describes the injury as "Back-pain in

back run [sic] all way down right leg, disc-L-5-S."        Childress

described, and Dr. James E. Foster located, the pain in the lower

back.    No mention was made of the neck.    The first record of neck

complaints is an office note dated December 5, 1989, when Dr.

Foster reported that Childress had injured his neck jumping over

a creek.    Several other physicians who treated Childress declined

to relate the neck pain to the original compensable accident.
        "It is fundamental that a finding of fact made by the

Commission is conclusive and binding upon this court on review.

A question raised by conflicting medical opinion is a question of

fact."     Department of Corrections v. Powell, 2 Va. App. 712, 714,

347 S.E.2d 532, 533 (1986).      The commission held that Childress

failed to sustain his burden of proving the causal relationship

between his neck problems and the compensable injury.       The

evidence supports this holding.

               III.   CAUSATION OF PSYCHIATRIC CONDITION

        Childress next contends that the commission erred in ruling

that his psychiatric condition was not causally related to the

1985 compensable injury.      Childress has been treated for paranoia



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and related personality disorders.      He presented to the

commission evidence that the paranoia was related to the ongoing

conflict over his medical care and specifically pointed to his

major depression following one doctor's refusal to perform

surgery.   The commission considered this evidence, as well as the

observations of the carrier's psychiatrist, Dr. Andrew C.

Bockner.   The commission determined that Childress's psychiatric

problems pre-existed and were not causally related to the 1985

compensable injury.   Credible evidence supports this finding.
    IV.    ADMISSIBILITY OF LETTER AS AFTER-DISCOVERED EVIDENCE

     Childress contends that the commission erred in refusing to

consider a letter from Dr. Foster, pertaining to the cause of

Childress's neck injury.   He argues that the letter should be

considered after-discovered evidence.     We disagree.

     On March 16, 1998, Childress's counsel mailed to the

commission a letter requesting that the full commission consider

an attached letter from Dr. Foster.     Counsel's letter stated that

Childress had been attempting to locate Dr. Foster, but had

theretofore been unsuccessful, despite his diligence.     The Foster

letter is a single-page, handwritten document, the date of which

is not determinable from the face of the document.

     The commission may reopen the record "only when . . . such

course is absolutely necessary."   Rules of the Workers'

Compensation Commission 3.3.
          The four requirements which must be met
          before the record will be reopened on the
          basis of after-discovered evidence are that:


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          (1) the evidence was obtained after the
          hearing; (2) it could not have been obtained
          prior to hearing through the exercise of
          reasonable diligence; (3) it is not merely
          cumulative, corroborative or collateral; and
          (4) it is material and should produce an
          opposite result before the commission.


Williams v. People's Life Insurance Co., 19 Va. App. 530, 532,

452 S.E.2d 881, 883 (1995).

     Childress failed to prove any of the foregoing elements.

The letter and its date were not authenticated.     When and under

what circumstances the letter was obtained was left undetermined.

Childress offered no credible evidence that he used reasonable

diligence in attempting to locate Dr. Foster.     The letter is so

sparse that it could have no material effect on the decision of

the commission.   It provides no new evidence, but offers only the

bare opinion of Dr. Foster that Childress's neck problems may be

manifestations of his back injury.      Thus, the commission properly

refused admission of the letter as after-discovered evidence.
                      V.   DATES OF DISABILITY
     The commission determined that Childress was able to work as

a line mechanic for Appalachian from January 4, 1995, until he

re-injured his back on August 22, 1995.     Childress contends that

he was disabled the entire time and should therefore be

compensated for this period.   Conversely, Appalachian contends

that no more benefits are due because Childress did not become

disabled on August 22, 1995.   We disagree with both parties and

affirm the decision of the commission.




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     The only medical evidence supporting Childress's claim that

he was disabled throughout the entire period is the opinion of

Dr. Solyom that Childress has a psychiatric condition.     We have

already affirmed the commission's finding that the psychiatric

condition was pre-existing.    Thus, no evidence would support a

finding that Childress was disabled from January 4, 1995 through

August 22, 1995.

     Childress contends that Appalachian did not comply with Rule

1.4, which requires that benefits be paid by an employer through

the date of filing of an application for a hearing.    See Rules of

the Workers' Compensation Commission 1.4.    The commission

determined that Appalachian had paid the amount owed to

Childress, but had mistakenly classified the payment as long-term

disability benefits rather than as workers' compensation.

Regardless, Childress did not raise this issue until two days

before the hearing, and so did not do so timely.

     We also disagree with Appalachian's contention that the

commission erred in finding that Childress again became disabled

on August 22, 1995.    Dr. Donald P.K. Chan, an orthopedist at the

University of Virginia, opined that Childress was totally

disabled from his back condition alone, regardless of neck or

psychiatric problems.    Thus, credible evidence supports the

commission's finding that Childress became totally disabled after

August 22, 1995.

           VI.     ENTITLEMENT TO CREDIT FOR OVERPAYMENT




                                - 7 -
     The employer contends that it has overpaid Childress

$9.022.83 1 and that it should be credited with that overpayment

as an offset against future benefit payments.   While it is clear

that an overpayment was made, the mistake was unilateral on the

part of the employer.   The commission found that by commingling

Childress's workers' compensation benefits and his total

disability payments, the employer made the mistake in such a

manner that Childress could not have recognized the error.   The

commission recognized that workers' compensation is designed to

be compensatory and should not provide a windfall to the injured

employee.   Nonetheless, the commission found that allowing an

offset to Appalachian for its own mistake in this case would not

be equitable.   Childress did not recognize the error while it was

being made, and thus could not have planned for a decrease in his

current payments to make up for the mistake.    The commission

found that allowing that offset would unnecessarily and

improperly punish Childress.   Code § 65.2-520 permits recoupment

by an employer of voluntary excess payments with the approval of
the commission.   Under the circumstances of this case, we cannot

say that the commission abused its discretion in denying approval

for recoupment or offset.
     1
      The employer owed Childress $35,541 in workers'
compensation benefits. It paid him $22,670.54 in workers'
compensation and $22,410.91 in long-term disability benefits.
Although the overpayment seems to total $10,540.45, the deputy
commissioner reached the figure $9,022.83 through the unrefuted
evidence offered by the employer. The full commission determined
that the calculation would stand because neither party raised an
objection to the amount.



                               - 8 -
                             VII.     SUMMARY

     We affirm the commission's holdings (1) that Childress's

neck condition was not causally related to the 1985 compensable

accident; (2) that Childress's psychiatric condition was

pre-existing and not causally related to the 1985 compensable

accident; (3) that the letter from Dr. Foster does not fulfill

the requirements of after-discovered evidence and its

admissibility was properly denied; (4) that Childress was capable

of returning to work as a line mechanic on January 4, 1995; (5)

that Childress was re-injured on August 22, 1995, and was

entitled to benefits after that date; and (6) that Appalachian's

overpayment of benefits cannot be offset against future payments

to Childress.   We reverse the commission's finding that Dr.

Wang's treatment was not authorized until August 9, 1994.    We

hold that such treatment was authorized and compensable from the

date of referral by Dr. Dunstan, February 7, 1994.
     Accordingly, the decision of the commission is affirmed in

part and reversed in part.
                                                Affirmed in part,
                                                reversed in part.




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