                      COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia


DOUBLE M COAL COMPANY AND
 NATIONAL UNION FIRE INSURANCE
 COMPANY OF PITTSBURGH
                                            MEMORANDUM OPINION* BY
v.   Record No. 0560-01-3                JUDGE JERE M. H. WILLIS, JR.
                                               OCTOBER 16, 2001
SCOTT WAYNE COLLINS


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          S. Vernon Priddy III (Sands Anderson Marks &
          Miller, on brief), for appellants.

          D. Allison Mullins (Lee & Phipps, P.C., on
          brief), for appellee.


     On appeal from a decision of the Workers' Compensation

Commission, Double M Coal Company and its insurer, National

Union Fire Insurance Company of Pittsburgh (together DMCC),

contend that the commission erred (1) in holding that Collins

established compensable disability within the two-year statute

of limitations contained in Code § 65.2-601, (2) in holding that

Collins proved a change in condition, (3) in holding that

Collins adequately marketed his residual work capacity, (4) in

disregarding their defense that Collins had to cure a refusal to

cooperate with medical treatment, and (5) in holding that


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Collins had not failed to cooperate with medical treatment.

Finding no error, we affirm the commission's decision.

                           I.   BACKGROUND

     On January 22, 1998, Scott Wayne Collins was employed as a

coal miner by Double M Coal Company.    On that day, a rock fell

on him.   He was knocked backward where he struck a tire on a

bolt machine.    He alleged injuries to his back, left arm, left

shoulder and neck.

     By opinion issued September 18, 1998, the deputy

commissioner determined that Collins had sustained an injury to

his left ulnar nerve and his left shoulder but that his back

condition was not causally related to the occupational accident.

The deputy commissioner entered an award for medical benefits,

but awarded no indemnity benefits because Collins was totally

disabled for one day only and had failed to market his residual

work capacity.   The full commission affirmed.

     On October 16, 1998, Collins filed a change-in-condition

application, seeking temporary total disability benefits

beginning October 1, 1998, and continuing.   By opinion dated

March 1, 2000, the deputy commissioner denied Collins' claim,

finding no proof of disability causally related to the

occupational accident.

     On January 12, 2000, Collins filed a change-in-condition

application, seeking temporary total disability benefits

beginning December 15, 1999, and continuing.     The deputy

                                - 2 -
commissioner awarded temporary total disability benefits to

Collins, finding that he had established a change in condition

and that he had marketed his residual work capacity.     She

further ruled that the March 1, 2000 opinion had not held that

Collins failed to cooperate and, therefore, had impressed upon

him no obligation to cure.

     The full commission affirmed.

               II.   TWO-YEAR STATUTE OF LIMITATIONS

     DMCC contends that the commission lacked jurisdiction to

award Collins disability benefits because he failed to prove a

disability existing within the two-year statute of limitations

contained in Code § 65.2-601. 1    Relying on Mayberry v. Alcoa

Bldg. Prods., 18 Va. App. 18, 441 S.E.2d 349 (1994), 2 DMCC argues

that, in addition to filing a claim for benefits within the

two-year statute of limitations period, Collins was also

required to prove an "awardable" work incapacity within two

years from the date of his accident.      DMCC argues that, because


     1
       Code § 65.2-601 provides that "[t]he right to compensation
under this title shall be forever barred, unless a claim be
filed with the Commission within two years after the accident."
     2
       The issue in Mayberry was whether the claimant had an
"awardable work incapacity within two years from the date of his
accident." Mayberry, 18 Va. App. at 19, 441 S.E.2d at 349.
Mayberry did not miss any time from work until two years and two
months after the date of his accident, and his initial
disability occurred a full two months after the statute of
limitations had expired. We concluded that the claim was barred
by the statute of limitations "[b]ecause Mayberry did not file a
timely application or demonstrate any disability during the two
year period . . . ." Id. at 20, 441 S.E.2d at 350.

                                  - 3 -
Collins could not prove an "awardable" work incapacity until

Dr. Moore's January 25, 2000 work restrictions, which was beyond

the two-year period, Collins' claim is time barred.

     DMCC argues on brief that "[t]he Full Commission did not

find that any medical evidence adduced at this hearing

demonstrated disability causally related to [Collins'] January

22, 1998 accident before the January 25, 2000 report by

Dr. Moore."   This is an inaccurate reading of the full

commission's decision.

     While the deputy commissioner determined that Collins did

not establish entitlement to an award of disability benefits

prior to Dr. Moore's January 25, 2000 opinion issuing permanent

restrictions, the full commission held:

          There is no question . . . that [Collins]
          was partially disabled before January 25,
          2000.

               For example, on December 13, 1999,
          Dr. Moore examined [Collins] for his "ulnar
          nerve palsy," with complaints of "L arm
          number and number," and on January 25, 2000,
          Dr. Moore's restrictions listed "left ulnar
          neuropathy" as a basis for the restrictions.
          There was no indication, however, that this
          condition was new to [Collins]. To the
          contrary, Dr. Moore noted that [Collins] had
          suffered from this condition since "rock
          fall in mines." Thus, Dr. Moore issued his
          restrictions on January 25, 2000, when
          requested; [Collins] suffered from
          disability well before then. Regardless, in
          a prior opinion issued September 18, 1998,
          the deputy commissioner found that [Collins]
          was only partially disabled and declined to
          award compensation benefits because he did
          not prove adequate marketing. Therefore,

                               - 4 -
          unlike the employee in Mayberry, who was not
          able to "demonstrate any disability during
          the two year period" after the accident, the
          Commission has already determined that
          [Collins] was disabled within two years
          after the compensable accident.

     Credible evidence supports this finding.      Moreover, DMCC's

reliance on Mayberry is misplaced.       Although we held in Mayberry

that the claim was time barred, we said:      "Had Mayberry filed a

claim for compensation benefits before the statute had run, or

received a formal award, he would have been eligible for

Workers' Compensation benefits."     Mayberry, 18 Va. App. at 21,

441 S.E.2d at 351.   Here, Collins, in fact, did file his claim

for benefits before the statute had run.      Collins' accident

occurred on January 22, 1998, and his current claim was filed on

January 12, 2000.    Therefore, the claim filed by Collins is not

barred by Code § 65.2-601.

                      III.   CHANGE IN CONDITION

     "General principles of workman's compensation law provide

that '[i]n an application for review of any award on the ground

of change in condition, the burden is on the party alleging such

change to prove his allegations by a preponderance of the

evidence.'"   Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.

459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight

Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d

570, 572 (1986)).    Factual findings made by the commission will

be upheld on appeal if supported by credible evidence.       See


                                 - 5 -
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989).

     The commission ruled that Collins "was partially disabled

because of his left arm condition, and was under Dr. Moore's

restrictions as of January 25, 2000."   In so ruling, the

commission found as follows:

          The medical evidence indicated that
          Dr. Moore treated [Collins] for his arm and
          shoulder problems since December 1998. On
          January 25, 2000, Dr. Moore noted that
          [Collins] "needs restrictions, rock fall in
          mines -- L arm -- ulnar nerve, L shoulder
          -- rotator cuff, back injury, anxiety,
          depression." Dr. Moore listed the following
          diagnoses: "Left ulnar neuropathy -- comp
          injury; degenerative disc disease
          -- thoracic -- previous injury; left rotator
          cuff injury -- comp injury; anxiety with
          depression." He gave the following
          restrictions:

               (1) No gross or fine manipulation with
               [left] hand. No lifting over 1 lbs
               [with] left arm. No lifting above
               shoulder level with left arm. (2) No
               lifting [with] back over 5 lbs. No
               bending, stooping, climbing, squatting.
               (3) Rt. arm should be free to use
               Colorado crutch when walking or
               standing. (4) Walking or standing
               -- 2 hours in an 8 hour day. (5)
               Sitting -- 3 hours in an 8 hour day.
               (6) driving -- up to 20 minutes at a
               time.

           *      *       *     *       *      *      *

          The deputy commissioner acknowledged that
          Dr. Moore's restrictions included items not
          related to [Collins'] left-arm condition,
          such as restricted bending, sitting,
          standing, and driving. We believe the
          deputy commissioner reasonably concluded,

                               - 6 -
           however, that Dr. Moore's first restriction
           of "no gross or fine manipulation" with the
           left hand, as well as limited lifting with
           the left arm, concerned [Collins']
           compensable left-arm neuropathy. As for the
           causal connection between [Collins']
           left-arm condition and his restricted
           activities, Dr. Moore clearly indicated that
           his condition was "comp injury" caused by
           "rock fall in mines." Moreover, Dr. Moore
           has treated [Collins] for this problem since
           December 1998.

      As the fact finder, the commission was entitled to weigh

the medical evidence and to accept the opinion of Dr. Moore,

Collins' treating physician since the accident.   Dr. Moore's

medical reports and opinions constitute credible evidence to

support the commission's finding that Collins "was partially

disabled because of his left arm condition, and was under

Dr. Moore's restrictions as of January 25, 2000."   Accordingly,

that finding is binding and conclusive upon us on appeal.       See

id.

           IV.   FAILURE TO MARKET RESIDUAL WORK CAPACITY

      DMCC next argues that the commission erred in finding that

Collins adequately marketed his residual work capacity.

      A partially disabled employee is required to make

reasonable efforts to market his residual earning capacity to be

entitled to receive continued benefits.    See National Linen

Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989).

"In determining whether a claimant has made a reasonable effort

to market his remaining work capacity, we view the evidence in


                                - 7 -
the light most favorable to . . . the prevailing party before

the commission."     Id. at 270, 380 S.E.2d at 33.   "What

constitutes a reasonable marketing effort depends upon the facts

and circumstances of each case."     Greif Companies (GENESCO) v.

Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993).

     At the hearing before the deputy commissioner, Collins

testified that he made "between four and six" contacts a week in

his attempt to market his residual work capacity.     Further, he

submitted a list of potential employers that he contacted.    The

commission found that Collins' "efforts . . . were reasonable."

The commission's finding is supported by credible evidence,

i.e., Collins' testimony and his list of contacts, and will not

be disturbed on appeal.

            V.     CURE OF REFUSAL OF MEDICAL TREATMENT

     Next, DMCC contends that Collins was required to show that

he cured a refusal of medical treatment.    In a March 1, 2000

opinion on an earlier change-in-condition claim, the deputy

commissioner held:

          We find no medical evidence supporting
          [Collins'] disability based upon his left
          ulnar nerve and left shoulder injury. In
          fact, we cannot find medical evidence
          supporting [Collins'] disability based upon
          his noncompensable back injury. We believe
          that [Collins] failed to cooperate with the
          physical therapist performing his Functional
          Capacity Evaluation. We also believe that
          he was somewhat recalcitrant with his own
          doctors. Based upon all of the
          circumstances of this case, we find that
          [Collins] has failed in his burden of

                                 - 8 -
           proving that he suffered a change in
           circumstances and/or that he has been
           temporarily totally disabled since October
           1, 1998.

Collins v. Double M Coal Co., VWC File No. 190-13-92 (Mar. 1,

2000).   DMCC now argues that Collins was required to show that

he "cured" this "refusal" before he can be awarded benefits for

his present claim.

     DMCC's reliance on the March 1, 2000 opinion is based on

the deputy commissioner's dictum following his decision not to

award benefits.   In the March 1, 2000 opinion, the deputy

commissioner stated, "[Collins] failed to cooperate with the

physical therapist performing his Functional Capacity

Evaluation," and "[Collins] was somewhat recalcitrant with his

own doctors."

     We do not believe the deputy commissioner's dictum is

relevant to the holding that Collins had failed to prove

disability.    Further, these two statements by the deputy

commissioner in no way establish that Collins refused a surgical

decompression procedure on his left arm.   Therefore, Collins was

under no duty to "cure" any "refusal" of medical treatment.    As

the commission correctly determined, "[DMCC's] 'failure to cure'

defense was, in essence, a defense that [Collins] refused

reasonable and necessary medical treatment under Code

§ 65.2-603."




                                - 9 -
     VI.     REFUSAL OF MEDICAL TREATMENT UNDER CODE § 65.2-603

     Next, we consider whether Collins is barred from receiving

compensation for unjustifiably refusing to accept medical

treatment.     See Code § 65.2-603; Shawnee Management Corp. v.

Hamilton, 25 Va. App. 672, 678, 492 S.E.2d 456, 459 (1997) (en

banc).   Whether or not he refused medical treatment is a

question of fact.     Id.   In determining whether Collins' refusal

of treatment is justified, we review the evidence from his

perspective and "in light of the information available to [him]"

at the time of his decision.      Holland v. Virginia Bridge &

Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867, 868

(1990) (citation omitted).

     In finding that the evidence failed to establish an

unjustified refusal of medical treatment, the commission found

as follows:

             Dr. Smith concluded on April 1, 1999, that
             considering "[Collins'] numerous complaints,
             it is felt at this point, an ulnar nerve
             release would offer very little relief to
             his overall pain pattern and generalized
             loss of function due to his ongoing pain."

                  Dr. Nabil Ahmad, a physical medicine
             specialist, on the other hand, believed
             [Collins] should undergo the surgery, as
             shown by his September 9, 1999, referral to
             Dr. Smith "as far as surgical release."
             Dr. Smith, however, did not recommend
             surgery. There was also no indication that
             Dr. Moore believed surgery was advisable, as
             shown by his January 25, 2000, referral to a
             pain clinic in Johnson City for [Collins']
             complaints. Thus we agree with the deputy
             commissioner that the evidence failed to

                                 - 10 -
             establish an unjustified refusal of medical
             treatment.

     "[I]t 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."     Commonwealth v. Powell, 2 Va. App. 712, 714, 347

S.E.2d 532, 533 (1986) (citations omitted).    The commission was

free to accept the opinions of Drs. Smith and Moore, and to

reject the opinion of Dr. Ahmad.    Their opinions constitute

credible evidence to support the commission's decision that the

evidence failed to establish an unjustified refusal of medical

treatment.

     For these reasons, we find that the commission did not err

in awarding temporary total disability benefits to Collins.

Accordingly, we affirm the commission's decision.

                                                           Affirmed.




                                - 11 -
