                      COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued at Alexandria, Virginia


USAIR, INC.
                                           MEMORANDUM OPINION * BY
v.       Record No.    2664-96-4        JUDGE JOHANNA L. FITZPATRICK
                                               JUNE 10, 1997
TRACIE G. WATSON


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Michael N. Salveson (Hunton & Williams, on
           briefs), for appellant.
           James E. Swiger (Swiger & Cay, on brief), for
           appellee.



     On appeal from the full commission's decision awarding

benefits to Tracie G. Watson (claimant), USAir, Inc. (employer)

contends that the commission erred in (1) finding that claimant's

release to return to work was conditional based upon her

receiving therapy, (2) imposing an inappropriate burden on

employer, and (3) improperly considering hearsay statements. 1

For the reasons that follow, we reverse the judgment of the

commission.

                               BACKGROUND

     On February 6, 1993, claimant sustained a compensable injury

to her lower back and left knee.     She was paid compensation

through April 17, 1995 in the amount of $334.93 per week.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      Because we reverse on the first issue, we need not address
employer's other assignments of error.
     On April 17, 1995, employer filed an Application for Hearing

to terminate or suspend claimant's compensation asserting that

claimant had recovered from her physical injury.   The deputy

commissioner found that "[b]ased on medical evidence . . . we are

of the opinion that Watson was able to return to her pre-injury

job as of April 11, 1995.   The employer/carrier's obligation to

continue to pay compensation benefits must cease."

     Upon review of that initial determination, the full

commission remanded the case to the deputy commissioner, because

"the issue of whether the claimant is psychologically disabled as

a result of her industrial injury . . . has not been determined.

The question of whether she has been released to return to her

preinjury employment cannot be resolved until the issue of

psychological disability is addressed."   The case was remanded

with "directions that the Deputy Commissioner instruct the

employer to schedule an evaluation of the claimant by Dr.

Friedman.   Following this evaluation, the case will be placed on

the docket for a Hearing de novo."
     Claimant was evaluated by Dr. Joel R. Friedman (Dr.

Friedman) on November 20, 1995.   Dr. Friedman concluded that

claimant suffered from chronic pain syndrome. He stated that,
          Given the extensive past efforts at physical
          rehabilitation, I do not recommend any
          further such efforts. Since she has not had
          any psychological counseling around the
          issues of adjustment to chronic injury, I do
          think this may be worth a try. I would,
          therefore, recommend a brief course of
          structured psychotherapy for approximately 4
          to 6 sessions . . . . I would then use this



                                  2
            as a foundation to help Ms. Watson develop
            appropriate coping skills to self-manage her
            chronic pain that would enable her to resume
            a more normal, less disabled, lifestyle
            including return to work.


     Barbara J. Kinder, R.N. (Kinder), the rehabilitation case

manager retained by employer, confirmed, by letter dated December

13, 1995 and signed by Dr. Friedman, her conversation with Dr.

Friedman wherein he "stated that Ms. Watson could be released to

work . . . with regard to her mental health status . . . [and]

further recommend[ed] that she schedule an appointment . . . to

coincide with her first week of work in order to work with her on

her adjustment issues."
     Claimant was also evaluated by Dr. Bruce M. Smoller (Dr.

Smoller).    He reported on January 2, 1996, as follows:
                 Ms. Watson would benefit from a
            short-term session of counseling with
            antidepressant medication. This should be
            tied clearly with the return to work. I would
            recommend eight sessions with a return to
            work during those eight sessions.
            Antidepressant medications should be begun at
            the first session.

                 The patient has no limitation of duties
            as related to mental health. She has no
            disability according to AMA Guidelines
            related to her psychiatric status. Her
            psychiatric status, however, does impair her
            efficiency somewhat and thus it would be
            helpful to have her in supportive therapy for
            eight sessions with medication while she
            returns to work.

                 MMI has been reached physically.
            Psychiatrically, MMI will have been reached
            after the eight sessions of psychotherapy.

                 Finally, this patient may return to work
            during the course of therapy. Assuming this



                                  3
           therapy begins the middle of January 1996, a
           return to work date of 1/31/96 or 2/1/96 is
           not unreasonable. Technically, the patient
           may return to work immediately from a
           psychiatric standpoint as she has no
           psychiatric disability.

(Emphasis added.)


     At the next hearing before the deputy commissioner, claimant

testified regarding her impression of her responsibilities "from

a psychiatric standpoint."   She testified that "Well, my

understanding was that I would need treatment" and that it was

not her understanding that it was her responsibility to schedule

any appointments.   The deputy commissioner considered her

statements over employer's objections.
     The deputy commissioner's opinion of April 30, 1996,

terminated the compensation awarded to claimant, finding as

follows:
           [A]bsolutely no evidence of a psychiatric
           inability to return to regular work and other
           than the brief period from August 18 through
           August 27, 1995 we find no physical inability
           to work . . . . [W]hile [] Dr. Friedman
           recommended counselling [sic], neither he nor
           Dr. Smoller expressed that the claimant had a
           mental condition that prevented her from
           working. Under such circumstances, the
           claimant's subjective beliefs are not
           corroborated by the medical record.


     The full commission, on October 3, 1996, found that

"claimant's physical recovery does not appear to be contested.

Her disability, if any, is the result of her ensuing

psychological condition."    Additionally, the commission reached

the following conclusions:


                                  4
     [C]laimant's release to return to work,
from a psychological standpoint, was
conditional, the condition being that she
enter into counseling or therapy sessions at
the same time she return to work. There is
no evidence that she was offered work by her
preinjury employer in any capacity. This was
the employer's burden, inasmuch as it was the
moving party in this case.

     Moreover, there is no evidence that the
recommended psychological counseling was
offered the claimant. She was questioned
extensively on this point and repeatedly
stated her understanding that Dr. Friedman's
office would be in touch with her to schedule
these sessions. The only evidence to the
contrary is the letter from Ms. Kinder to Dr.
Friedman, dated December 13, 1995, noting her
understanding that the claimant would be
responsible for scheduling the sessions.
Although Dr. Friedman signed this letter
indicating his agreement with Ms. Kinder's
summation of her telephone conversation with
him the same day, there apparently was no
follow-up by either side in scheduling these
appointments.
     Upon this record, we find upon Review
that the claimant has not recovered from a
psychological standpoint sufficiently to
return to her preinjury employment. Her
release clearly was conditioned upon
counseling, which was to commence at the same
time she returned to work. The claimant has
not refused the psychological counseling, but
testified repeatedly that it was her
understanding that she would be informed when
appointments were made. Moreover, these
appointments were to coincide with her return
to employment, which was never offered. The
employer, in summary, should have offered the
claimant her preinjury job, notwithstanding
her opinion that she was not able to perform
it, and at the same time, offered the
recommended psychological treatment. Having
failed to do so, the employer has not
established a basis upon which compensation
may be suspended.

         CONDITIONAL RETURN TO WORK



                      5
     Employer argues that the commission erred in its decision

that claimant's release to return to work was conditioned upon

her receiving therapy.    This issue, whether claimant's return to

work was conditional, is a question of fact.

     It is well settled that findings of fact made by the

commission are binding on appeal even if contrary evidence exists

in the record.     Russell Loungewear v. Gray, 2 Va. App. 90, 341

S.E.2d 824 (1986); Rogers v. Williams, 196 Va. 39, 82 S.E.2d 601

(1954).   The commission's resolution of a conflict in medical

evidence, including an internal conflict in an expert's opinion,

is within the purview of the commission's fact finding authority

and is binding on appeal if it is supported by credible medical

evidence.     Chandler v. Schmidt Baking Co., Inc., 228 Va. 265, 321

S.E.2d 296 (1984); Sneed v. Morengo, Inc., 19 Va. App. 199, 450

S.E.2d 167 (1994).    In the instant case, there is no credible

evidence to support the commission's finding that claimant's

release to return to work was conditioned on her receipt of

counseling.

     Dr. Friedman specifically recommended that he "would . . .

recommend a brief course of structured psychotherapy for

approximately 4 to 6 sessions."    He made this recommendation "to

help [claimant] develop appropriate coping skills to self-manage
her chronic pain that would enable her to resume a more normal,

less disabled, lifestyle including return to work."    (Emphasis

added.)



                                   6
     Dr. Smoller's report, relied upon by the commission,

contained treatment recommendations, which when read in their

entirety, clearly state that claimant's return to work was

unconditional:    "I would recommend eight sessions [of counseling]

with a return to work during those eight sessions. . . . The

patient has no limitation of duties as related to mental health.

 She has no disability . . . related to her psychiatric status.

. . . [T]his patient may return to work during the course of

therapy."   (Emphasis added.)   Dr. Smoller used no language to

indicate that claimant should or must receive therapy prior to

returning to work.   Rather, he further stated that,

"[t]echnically, the patient may return to work immediately from a
psychiatric standpoint as she has no psychiatric disability."

(Emphasis added.)    Additionally, he clarified his recommendation

for counseling:   "[Claimant's] psychiatric status, however, does

impair her efficiency somewhat and thus it would be helpful to

have her in supportive therapy . . . while she returns to work."

(Emphasis added.)

     Lastly, Barbara J. Kinder, R.N., wrote a letter to Dr.

Friedman to confirm his recommendation that claimant "could be

released to work . . . immediately, with regard to her mental

health status" and that "she schedule an appointment . . . to

coincide with her first week of work . . . to work with her on

her adjustment issues."

     The foregoing evidence fails to support the commission's



                                  7
finding that claimant's release to return to work was a

conditional one.   Rather, the record reveals that it was

recommended by both doctors that claimant, who had no mental or

emotional work limitations, return to work.

     Accordingly, the decision of the commission is reversed.

                                         Reversed.




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