                             COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Hodges
Argued at Richmond, Virginia


SODEXHO MARRIOTT SERVICES, INC. AND
BIRMINGHAM FIRE INS. CO. OF
PENNSYLVANIA/CRAWFORD & COMPANY
                                                            MEMORANDUM OPINION*
v.     Record No. 1389-03-2                               BY JUDGE WILLIAM H. HODGES
                                                               DECEMBER 23, 2003
WANDA D. BROCKENBERRY


            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

              Michael P. Del Bueno (Ralph L. Whitt, Jr.; Whitt & Associates, on
              briefs), for appellants.

              Zenobia J. Peoples for appellee.


       Sodexho Marriott Services, Inc. and its insurer (hereinafter referred to as “employer”)

appeal a decision of the Workers’ Compensation Commission awarding Wanda D. Brockenberry

temporary total disability (TTD) benefits commencing July 10, 2001 and continuing. In its

opening brief, employer presents seven questions. All questions concern whether the

commission erred in finding that Brockenberry proved (1) she sustained a change-in-condition

causally related to her compensable December 15, 1999 left knee injury and warranting the

resumption of TTD benefits beginning July 10, 2001, and (2) that she was entitled to TTD

benefits beginning July 10, 2001 and continuing. Finding no error, we affirm the commission’s

decision.

       On appeal, we view the evidence in the light most favorable to the prevailing party

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


       * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
In its role as fact finder, the commission “resolves all conflicts in the evidence and determines

the weight to be accorded the various evidentiary submissions.” Bass v. City of Richmond

Police Dep’t, 258 Va. 103, 114, 515 S.E.2d 557, 563 (1999). When based on credible evidence,

the commission’s judgments are “conclusive and binding as to all questions of fact.” Id.

(quoting Code § 65.2-706(A)); see also Westmoreland Coal Co. v. Russell, 31 Va. App. 16, 20,

520 S.E.2d 839, 841 (1999). Moreover, “the commission’s conclusions upon conflicting

inferences, legitimately drawn from proven facts, are equally binding on appeal.” Watkins v.

Halco Eng’g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983). Our deference to the

commission’s fact finding applies “‘even though there is evidence in the record to support a

contrary finding.’” S.P. Terry Co. v. Rubinos, 38 Va. App. 624, 632, 567 S.E.2d 584, 588

(2002) (citation omitted). When the factual record permits competing inferences, we defer to the

commission’s assessment of the “probative weight to be accorded . . . evidence” - recognizing

that the commission “is free to adopt that view ‘which is most consistent with reason and

justice.’” Georgia-Pac. Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 269 (2000)

(quoting C.D.S. Const. Servs. v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236, 240 (1978)).

                                           Background

       Brockenberry sustained an injury to her left knee on July 22, 1997, when she slipped and

fell on a wet floor at a Wal-Mart store.1 Dr. Dawson treated Brockenberry for that injury. He

prescribed a cast, crutches, and anti-inflammatory medications. X-rays taken at that time were

reported as normal except for a “patellar spur.” A November 14, 1997 MRI showed “[m]inimal

joint effusion” and “possible very minimal scar or soft tissue swelling anteriomedially.” That

MRI did not show any ligamentous tears, fractures, or dislocations. In addition, the cartilages



       1
       Brockenberry testified that the accident occurred on July 22, 1997, although Dr. Eric
Dawson’s records indicate it occurred on July 24, 1997.
                                               -2-
were intact. Dr. Dawson recommended continued treatment with anti-inflammatory medication

and an exercise regimen. On December 23, 1997, Dr. Michael Proctor, Dr. Dawson’s associate,

noted that Brockenberry still had some stiffness and tightness in her knee, but she was able to

perform most of her duties and activities. Dr. Proctor opined that Brockenberry’s prognosis was

good and instructed her to see him on an as needed basis. On March 11, 1998, Dr. Dawson

noted that Brockenberry continued to have patellar tracking, and tenderness to the anterior joint

line. He recommended that she continue to use ice, elevation, and medication.

        On December 15, 1999, Brockenberry slipped and fell, injuring her left knee, while

working as a banquet waitress for employer. The record contains no evidence that Brockenberry

sought any medical treatment for her left knee condition between March 12, 1998 and the

December 15, 1999 compensable accident. Moreover, she did not undergo any surgery on her

left knee prior to the December 15, 1999 compensable injury by accident.

        On June 22, 2000, Brockenberry filed an application seeking compensation benefits

related to the December 15, 1999 accident.

        In a May 22, 2001 opinion, Deputy Commissioner Tabb held that Brockenberry proved

she sustained a new injury to her left knee and hand as a result of the December 15, 1999 fall,

which arose out of and in the course of her employment. The deputy commissioner also held

that Brockenberry was entitled to an award of TTD benefits from December 15 through 17, 1999

and March 21, 2000 through August 16, 2000, as a result of the December 15, 1999 compensable

left knee injury.

        In an opinion dated November 14, 2001, the full commission affirmed the deputy

commissioner’s decision. The parties did not appeal that decision to this Court and, therefore, it

is final and binding.




                                                -3-
       On July 16, 2001, Brockenberry filed a change-in-condition application seeking a

resumption of TTD benefits beginning June 6, 2001 and continuing, as a result of her December

15, 1999 compensable left knee injury. Employer defended against that application on the

grounds that Brockenberry had not sustained a compensable change in condition; that there was

no causal connection between her December 15, 1999 compensable left knee injury and her

current disability and medical treatment; and that the medical evidence did not support the period

of disability alleged by Brockenberry.

                           I. Change in Condition as of July 10, 2001/
                                       Causal Connection

       In ruling that Brockenberry proved she sustained a change in condition in July 2001,

causally connected to her compensable December 15, 1999 left knee injury and warranting a

resumption of TTD benefits, the commission found as follows:

                       The evidence reflects that [Brockenberry] sustained a
               significant injury to her left knee in July of 1997 and that she
               suffered from an arthritic condition in her left knee before her
               industrial accident. However, the evidence also shows that [she]
               did not seek medical attention for her knee from March of 1998
               until her work-related injury on December 15, 1999-a period of
               more that a year and a half. In addition, the evidence shows that
               [Brockenberry] has continued to complain of pain in her left knee
               since her 1999 fall and that she has continued to seek medical
               attention and treatment for that pain. Furthermore, [she] developed
               a problem with her left knee buckling after her accident on
               December 15, 1999, that she did not have before her industrial
               accident.

                        Because [Brockenberry’s] symptoms persisted and because
               she reported that her leg was giving way, Dr. [Robert S.] Adelaar
               performed another arthroscopic examination of [Brockenberry’s]
               knee in July of 2001 as a result of which [she] became totally
               incapacitated. Based upon these facts, we find that
               [Brockenberry’s] incapacitation as of July of 2001 was caused, at
               least in part, by the aggravation of her left knee condition
               following her fall in December of 1999. We therefore agree with
               the Deputy Commissioner that [Brockenberry] established a
               change of condition warranting the resumption of [TTD] benefits.


                                               -4-
       “[C]hanges [in condition] include ‘progression, deterioration, or aggravation of the

compensable condition . . . appearance of new or more serious features [and] failure to recover

within the time originally predicted . . . .’” Armstrong Furniture v. Elder, 4 Va. App. 238, 243,

356 S.E.2d 614, 616 (1987) (quoting 3 A. Larson, The Law of Workmen’s Compensation

§ 81.31(a) (1983)).

       “[W]hen an employee files an application for reinstatement of disability benefits, two

questions arise: (1) has there been a change in the employee’s capacity to work; (2) if so, is the

change due to a condition causally connected with the injury originally compensated.” King’s

Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984).

       Brockenberry’s testimony, along with Dr. Adelaar’s medical reports beginning June 6,

2001, provide credible evidence to support the commission’s finding that Brockenberry sustained

a change in condition as of July 10, 2001, causally related to her December 15, 1999

compensable left knee injury and warranting a resumption of TTD benefits.

       Brockenberry testified that after Dr. Adelaar performed arthroscopic surgery on her left

knee on March 21, 2000, her left leg started collapsing. On May 1, 2000, Dr. Adelaar noted

Brockenberry’s continuing complaints of pain and that her knee was giving way. He released

her to light-duty as of May 3, 2000. However, on July 3, 2000, Dr. Adelaar noted buckling of

Brockenberry’s left knee and ordered an MRI. An August 7, 2000 MRI of her left knee showed

mild tendinitis of the distal quadriceps tendon anteriorly. On March 28, 2001, Dr. Adelaar noted

left thigh numbness and left medial knee pain, discharged Brockenberry from his care and

released her to light duty. He noted that he would see her as needed.

       On June 6, 2001, Brockenberry returned to Dr. Adelaar, who noted that she was using a

Don Joy brace given to her by Dr. Gazala. Dr. Adelaar’s examination revealed that

Brockenberry’s quadriceps had atrophied 1.5 centimeters on the left and 1.5 centimeters in the

                                                -5-
calf and that her leg was giving way when she walked. Dr. Adelaar also noted that Brockenberry

had a minimal draw test and needed another arthroscopic examination because of her continued

complaints, in order to see if there were any changes.

          In a July 10, 2001 disability slip, Dr. Adelaar opined that Brockenberry would be out of

work for knee surgery from June 6, 2001 through July 24, 2001. Dr. Adelaar’s July 12, 2001

operative report shows that he performed a debridement of the patella and medial plica resection.

The July 12, 2001 surgery caused Brockenberry to be totally disabled from work.

          Based upon this record and the lack of any medical treatment for Brockenberry’s left

knee condition between March 12, 1998 and the December 15, 1999 compensable accident, the

commission could reasonably infer that Brockenberry substantially recovered from her

November 1997 left knee injury before the December 15, 1999 compensable accident. Thus,

based upon Brockenberry’s testimony and Dr. Adelaar’s medical records, the commission could

infer that Brockenberry’s need for surgery in July 2001 and the change in her capacity to work as

of July 10, 2001, were causally related, at least in part, to an aggravation of her compensable

December 15, 1999 left knee injury. “Where reasonable inferences may be drawn from the

evidence in support of the commission’s factual findings, they will not be disturbed by this Court

on appeal.” Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698

(1988).

                                     II. Period of TTD Benefits

          In ruling that Brockenberry proved she was entitled to an award of TTD benefits

beginning July 10, 2001 and continuing, as a result of her compensable change in condition, the

commission found as follows:

                 Dr. Dawson opined that [Brockenberry] has remained totally
                 incapacitated due to her knee condition since she began seeing him
                 in October of 2001. He also indicated in his letter dated May 28,
                 2002, that [Brockenberry’s] current knee condition was caused by
                                                  -6-
               two injuries-her falls in 1997 and 1999. In contrast, Dr. Adelaar
               opined in his deposition that [Brockenberry] was able to perform
               light duty employment when he last saw her on October 26, 2001,
               as long as she is not required to perform heavy lifting or full
               squatting. Dr. Johnson agrees that [Brockenberry] is physically
               able to work although he does not believe she should engage in
               deep squats or lifting more than fifty pounds.

                        Dr. Adelaar did not, however, state in his office note from
               his final examination of [Brockenberry] on October 26, 2001, that
               [she] was able to return to work, and [Brockenberry] testified that
               he told her she was free to seek a second opinion at that time.
               [Brockenberry] did this and was told by Dr. Dawson just four days
               later that she remained totally incapacitated. Thus, we conclude
               that it was not unreasonable for [Brockenberry] to accept
               Dr. Dawson’s assessment regarding her total incapacity.

                       We also conclude that the Deputy Commissioner found
               [Brockenberry’s] description of her pain and physical abilities at
               the time of her visit to Dr. Dawson on October 30, 2001, to be
               implicitly credible and we defer to him in this regard. Dr. Dawson
               based his opinion regarding [Brockenberry’s] physical capacity at
               the time of her first visit to him in 2001, upon her description of
               pain as well as his review of Dr. Adelaar’s records and his personal
               understanding of [Brockenberry’s] condition as of 1998 when he
               last examined her in connection with her 1997 injury. Because
               Dr. Dawson has personal knowledge of [Brockenberry’s] knee
               condition prior to her fall in 1999 and because he continues to treat
               [Brockenberry] and is more aware of her current condition than
               either Dr. Adelaar, who last saw her in October of 2001, or
               Dr. Johnson, who examined [Brockenberry] only once, we agree
               with the Deputy Commissioner that Dr. Dawson’s opinion
               regarding [Brockenberry’s] physical capacity is more persuasive
               than Drs. Adelaar and Johnson.

       Dr. Dawson’s medical records and opinions provide credible evidence to support the

commission’s finding that Brockenberry proved that she had been totally disabled since July 10,

2001. “The fact that there is contrary evidence in the record is of no consequence if there is

credible evidence to support the commission’s finding.” Wagner Enters., Inc. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). Moreover, “[q]uestions raised by conflicting

medical opinions must be decided by the commission.” Penley v. Island Creek Coal Co., 8

Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).

                                                -7-
        The record shows that on July 24, 2001, Dr. Adelaar ordered Brockenberry to start

physical therapy and a disability note of that same date excused Brockenberry from work until

she returned to see Dr. Adelaar in one month. On October 26, 2001, Dr. Adelaar noted that

Brockenberry had continuing pain in her left knee. He indicated that the arthroscopic surgery

revealed a softening of the cartilage underneath her kneecap. He noted she had good range of

motion, but that her quadriceps function was not good. He opined that she had reached

maximum medical improvement under his care and recommended an exercise program, possible

injection, and anti-inflammatory medication. He did not comment at that time on her ability to

work.

        On October 30, 2001, Dr. Dawson examined Brockenberry for pain in her left knee. He

recommended conservative treatment and totally disabled her from work due to her left knee

injury from October 29, 2001 through November 14, 2001. On November 14, 2001, Dr. Dawson

examined Brockenberry, giving her a steroid injection and recommending that she continue with

anti-inflammatories and a bike exercise regimen. He totally disabled her from work from

November 14, 2001 through December 5, 2001. On December 5, 2001, Dr. Dawson examined

Brockenberry, noting that she “has had significant aggravation regarding the knee.” He noted

that “she is still having pain and discomfort with patello femoral crepitus to tracking at 25 and 45

degrees in the main.” At that time, Dr. Dawson recommended that Brockenberry continue with

regular anti-inflammatories, ice, and exercise, increasing the duration and time of the exercises.

He totally disabled her from work from December 5, 2001 through January 8, 2002. Additional

disability certificates signed by Dr. Dawson dated January 29, 2002, February 27, 2002, and

March 19, 2002, totally disabled Brockenberry from work through April 20, 2002, due to her

knee injury.




                                                -8-
       Dr. Adelaar’s medical records up through October 26, 2001 and Dr. Dawson’s medical

records provide credible evidence to support the commission’s conclusion that Brockenberry

proved that she was totally disabled from work beginning July 10, 2001 and continuing, as of the

date of the hearing.

       Employer points out that the record contains no contemporaneous office notes to support

Dr. Dawson’s January 29, 2002, February 27, 2002, and March 19, 2002 disability certificates.

However, we note that in Dr. Dawson’s May 28, 2002 letter to Brockenberry’s counsel, written

after he reviewed Dr. Johnson’s IME report, Dr. Dawson indicated that he examined

Brockenberry on February 27, 2002 and March 19, 2002 and that he continued to treat her. In

addition, Brockenberry testified that Dr. Dawson continued to provide her treatment as of the

March 22, 2002 hearing. Based upon Dr. Dawson’s May 28, 2002 letter and Brockenberry’s

testimony, the commission, as fact finder, could reasonably infer that Dr. Dawson continued to

treat and examine Brockenberry through the date of the hearing.2

       In its reply brief, employer argues that Dr. Dawson’s March 22, 2002 Attending

Physician’s Report, in which he indicated that Brockenberry could perform light semi-sedentary

work as of March 22, 2002, was impermissibly ignored by the deputy commissioner and the

commission as they did not mention the attending physician’s report in their respective

opinions.3 Employer argues that because the March 22, 2002 Attending Physician’s Report

conflicts with Dr. Dawson’s March 19, 2002 disability certificate and because it came after

Dr. Dawson’s March 19, 2002 disability certificate, it was the last evidence from Dr. Dawson


       2
         The hearing in this case occurred on March 22, 2002; however, the record was held
open solely for the purpose of receiving Dr. Johnson’s IME report and a response from
Dr. Dawson. The commission received those documents on June 4, 2002, and the record was
closed on that date.
       3
        Employer did not mention or discuss Dr. Dawson’s March 22, 2002 Attending
Physician’s Report in its opening brief.
                                             -9-
concerning Brockenberry’s disability from work and, therefore, the commission erred in

awarding Brockenberry TTD benefits after March 21, 2002. Employer did not provide the

commission with an opportunity to consider this argument. Employer did not raise this argument

in its written statement filed in support of its request for review of the deputy commissioner’s

decision nor did employer assert this argument to the commission in a motion for rehearing or

motion for reconsideration after the commission rendered its April 30, 2003 opinion.

Accordingly, we will not consider it for the first time on appeal. See Rule 5A:18; Williams v.

Gloucester Sheriff’s Dept., 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003) (“Rule 5A:18 . . . is

based on the principle that a litigant has the responsibility to afford a court the opportunity to

consider and correct a perceived error before such error is brought to the appellate court for

review.”) .

       For these reasons, we affirm the commission’s decision.

                                                                                            Affirmed.




                                                 - 10 -
