                        COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Duff
Argued at Alexandria, Virginia


FAIRFAX HOSPITAL AND INOVA HEALTH
 SYSTEM FOUNDATION, INC.
                                            MEMORANDUM OPINION * BY
v.   Record No. 1012-99-4                 JUDGE JAMES W. BENTON, JR.
                                                JANUARY 27, 2000
CANDY K. POST


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Eric J. Berghold (McCandlish & Lillard, P.C.,
             on brief), for appellants.

             Craig A. Brown (Ashcraft & Gerel, on brief),
             for appellee.


     Fairfax Hospital appeals from the commission's award of

benefits to Candy K. Post for various periods of temporary total

and temporary partial disability.    The Hospital raises sixteen

issues which assert that the commission erred in ruling (1) that

Post's claim is not barred by the statute of limitations, (2) that

the Hospital did not timely file the first report of accident, (3)

that the Hospital paid compensation payments to Post prior to

1994, and (4) that Post's disability and treatment are causally

related to her injury by accident.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                 I.

     The parties stipulated that on June 18, 1993, Post sustained

an injury by accident to her back arising out of and in the course

of her employment.   The Hospital also stipulated that Post was

disabled for the various periods she claimed through March 4,

1996; that the Hospital received notice of the accident on the day

of the accident; that the Hospital paid compensation benefits to

Post through September 10, 1994; that the Hospital filed the first

report of accident on June 30, 1994; that the commission mailed

the compensation guide to Post on July 13, 1994; and that Post

filed her claim for benefits in August 1995.

     At the evidentiary hearing, Post testified that she received

"compensation checks" from the Hospital when she missed time from

work or suffered income loss after the accident.   Post also

testified that she did not file a claim because "[she] was getting

paid . . . [and because she] was seeing [her] physician all the

time and [the Hospital was] paying [her] the whole time [she] was

injured."   She testified that whenever she incurred medical

expenses or lost time from work her supervisor told her "to file

the workers' comp," which she understood to mean that she was

required to complete and return the various paperwork to the

insurance company.   Post testified that this "was just a

procedure, like when [she] first went into the emergency room, the

paperwork and everything [she] had to do."   When Post submitted

the paperwork as instructed, the Hospital paid her medical bills

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and sent her checks to compensate her for lost wages.   In August

of 1995, however, the Hospital sent to Post the bill for her

recent medical treatment and informed her that the Hospital would

not pay it because the statute of limitations had expired.    She

then filed with the commission a claim for benefits.

     The commission ruled that the two year statute of limitations

for filing claims, see Code § 65.2-601, was tolled pursuant to

Code § 65.2-602.   The Hospital appeals from the award of benefits

to Post.

                                II.

     In pertinent part Code § 65.2-602 provides as follows:

           In any case where an employer has received
           notice of an accident resulting in
           compensable injury to an employee . . . ,
           and whether or not an award has been
           entered, such employer nevertheless has paid
           compensation or wages to such employee
           during incapacity for work . . . or the
           employer has failed to file the report of
           said accident with the . . . Commission as
           required by [Code] § 65.2-900, and such
           conduct of the employer has operated to
           prejudice the rights of such employee with
           respect to the filing of a claim prior to
           expiration of a statute of limitations
           otherwise applicable, such statute shall be
           tolled for the duration of such payment or,
           as the case may be, until the employer files
           the first report of accident . . . or [the
           employee] has received after the accident a
           workers' compensation guide . . . .

"Thus, notice, specified conduct and prejudice are the 'three

criteria' that must be established by [an employee] seeking




                               - 3 -
relief pursuant to . . . [the] statute."   Bristol Newspapers,

Inc. v. Shaffer, 16 Va. App. 703, 706, 432 S.E.2d 23, 25 (1993).

      "It is well settled that where the findings of fact of the

Commission are based on credible evidence, they are binding and

conclusive upon this Court."   Board of Supervisors v. Taylor, 1

Va. App. 425, 430-31, 339 S.E.2d 565, 568 (1986).   Furthermore,

if the record contains evidence or reasonable inferences that

can be drawn from the evidence to support the commission's

findings, we will not disturb those findings even though the

record may contain evidence to support contrary findings.    See

id.   Noting our holding in Shaffer, the commission found that

the evidence proved "a convergence of notice, specific conduct,

and prejudice" sufficient to toll the statute.

      The Hospital first contends that it was not required to

file a report prior to June 1994.   The record contains credible

evidence, however, to support the commission's finding that Post

"missed 40 days of work as a result of the . . . accident . . .

and suffered compensable wage loss for a period of eight

consecutive weeks following the injury."   Although the Hospital

received notice of the accident on June 18, 1993, the Hospital

did not file the first report of accident until June 30, 1994.

In view of the stipulations of the parties and Post's testimony,

the commission had a sufficient basis to find that the

Hospital's first report of accident was not timely.   See Code



                               - 4 -
§ 65.2-900; 16 VAC 30-90-30(A) (requiring the first report to be

filed within 10 days of the injury).

        The Hospital also contends the evidence failed to prove

that Post suffered prejudice.    We disagree.   The commission

relied upon Post's testimony that she did not file her claim

earlier because she had completed and sent the paperwork to the

Hospital that her supervisors told her was necessary "to file

the workers' comp."    The evidence proved the Hospital paid

either wage loss benefits or wages in lieu of compensation in

1993 and in 1994 for time Post was unable to work.    When the

Hospital paid her compensation benefits and medical expenses,

Post could have reasonably concluded that she was receiving

those payments because she sent the Hospital the necessary

"paperwork."

        Post testified and the commission found from Post's

testimony that she received ongoing wage loss benefits after the

accident.    According to well established principles, "[w]e do

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).    Indeed, the parties stipulated that

the Hospital paid compensation to Post as late as September 10,

1994.    The record, thus, supports the commission's finding that

the circumstances proved that Post was prejudiced and that the

statute was tolled until the Hospital filed its first report of

                                 - 5 -
accident.   Furthermore, as we ruled in Commonwealth Medical

Institute v. Stop-Headstart Program, 18 Va. App. 461, 453 S.E.2d

566 (1994), Post's "receipt of the guide did not retrospectively

eliminate the tolling of the statute of limitations which had

already occurred."    Id. at 463, 453 S.E.2d at 566.

                                III.

     On appeal, we must consider the evidence in the light most

favorable to the party prevailing below.     See Crisp v. Brown's

Tysons Corner Dodge, 1 Va. App. 503, 339 S.E.2d 916 (1986).

Post testified that her back injury has been symptomatic since

June of 1993.   She also testified that "every time I go to the

doctor it's pretty much the same thing and it's a reoccurrence

. . . it was the same injury, it felt the same."    Her testimony

is consistent with her medical records, which clearly reveal

that Post continued to complain of low back pain.      In addition,

Post's treating physician, Dr. Mark Theiss, reported that Post's

disability through March of 1996 was caused at least in part by

her injury by accident and that her ruptured discs at L4-5 and

L5-S1 were completely caused by the accident.    Thus, the

evidence proved a continuing compensable causal relationship

between her disabilities and the accident.    "[F]ull benefits

will be allowed when it is shown that 'the employment is a

contributing factor to the disability.'"     Smith v. Fieldcrest

Mills, Inc., 224 Va. 24, 28-29, 294 S.E.2d 805, 808 (1982)

(citation omitted).

                                - 6 -
Accordingly, we affirm the commission's award.

                                             Affirmed.




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