                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued by teleconference


BETTY B. COAL COMPANY, INC. AND
 NATIONAL UNION FIRE INSURANCE
 COMPANY OF PITTSBURGH
                                          MEMORANDUM OPINION * BY
v.   Record No. 0614-01-3               JUDGE ROBERT J. HUMPHREYS
                                             NOVEMBER 13, 2001
JERRY RUSSELL DOTSON


         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.


     Betty B. Coal Company, Inc. and its insurer, National Union

Fire Insurance Company of Pittsburgh ("employer"), appeal a

decision of the Workers' Compensation Commission denying their

application to terminate an ongoing award of temporary total

disability benefits to Jerry Russell Dotson.   For the reasons

that follow, we affirm the decision of the commission.

     Because this decision has no precedential value, we recite

only those facts pertinent to our holding.   Dotson, a scoop

operator for employer, was injured on September 17, 1998 when he




     *
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
slipped and fell while cleaning debris out of the bucket of the

scoop he had been operating.

        Following a medical examination performed by Dr. Kevin

Blackwell, Dotson was diagnosed as suffering from a right elbow

contusion, as well as right shoulder strain, and placed on

restricted work status.

        Dotson continued to experience shoulder pain and received

treatment for this problem through November of 1998.    At that

time, Dr. Blackwell referred Dotson to Dr. John M. Chandler, an

orthopedist.

        On November 23, 1998, Dr. Chandler diagnosed Dotson with

"cervical spondylosis, symptomatic with mild to moderate rotator

cuff impingement, right worse than left."    As to Dotson's

shoulder injury, Dr. Chandler recommended, "[w]ith respect to

the shoulder, [Dotson] simply needs to continue working on

restricted duty."

        Dotson saw Dr. Chandler once again on January 14, 1999.    He

advised Dotson to undergo EMGs and nerve conduction studies, and

referred him to "Dr. McConnell," a spine surgeon.    He further

recommended that Dotson continue to perform only light duty

work.    On June 3, 1999, in response to a letter of inquiry from

employer's counsel, Dr. Chandler wrote:

             Received your letter of June 1, 1999. I can
             say with certainty that Mr. Dotson would
             have needed to be on light duty from the
             period I saw him January 14, 1999 until a
             period that he could see Dr. McConnell.

                                 - 2 -
            That appointment was made January 25, 1999 I
            believe. Beyond that I cannot make any
            inferences as to whether or not his work
            status would have changed. It is not
            appropriate for me to review records and try
            to make that determination. . . .

     Dotson returned to Dr. Blackwell for treatment on October

14, 1999.   Dr. Blackwell indicated in his handwritten treatment

notes that the visit was a "FU for Rt. Shoulder Strain."   He

noted "R. shoulder pain," but wrote "normal exam."   Under the

heading "Disposition," Dr. Blackwell indicated Dotson "[m]ay

return to work without restrictions on 10/14/99."    However,

underneath this notation, Dr. Blackwell noted that an orthopedic

referral was pending.

     On December 10, 1999, Dr. Chandler examined Dotson once

again, and noted:

            My recommendation at this time would be to
            allow this man to rehabilitate his upper
            extremities. I do not think that the
            Cortisone injections in his shoulder are
            likely to relieve his pain except
            temporarily, and the risk of long term
            damage to the articular surface and
            otherwise normal shoulder is probably
            weighed against a more appropriate therapy
            which would be to place him in a therapy
            program. Certainly, we would be happy to
            review any records that needed to be
            reviewed, though from a pure orthopedic
            standpoint at this time, I believe that his
            persistent problems are probably related to
            his C6 radiculopathy and incomplete recovery
            of that. It is my opinion that a Cortisone
            injection would not appreciably improve his
            symptoms in the long term at this time.




                                - 3 -
     Dotson filed his initial claim for temporary total

disability benefits on December 11, 1998.   Both Dotson and

employer stipulated that his elbow and shoulder injuries were

causally related to the accident.   By opinion dated August 18,

1999, the deputy commissioner awarded Dotson temporary total

disability benefits for his right elbow and shoulder beginning

January 29, 1999 and continuing.    Employer sought a review by

the full commission.   The full commission affirmed the deputy's

decision on May 5, 2000.   See Jerry Russell Dotson v. Betty B

Coal Co., Inc., VWC File No. 193-33-27 (May 5, 2000).

     During the pendency of the above proceedings, employer

filed a separate application for hearing on December 1, 1999,

requesting termination of Dotson's award of temporary total

disability benefits.   Specifically, employer alleged in its

application that Dotson "was released to return to pre-injury

work on October 14, 1999 per Dr. Blackwell's report dated

October 14, 1999."   Employer attached Dr. Blackwell's

handwritten treatment notes from October 14, 1999 to its

application for hearing.

     The deputy commissioner decided the application on the

record, finding that employer failed to raise the issue of

whether any disability still remaining was unrelated to the

compensable injury and that employer failed to establish that

Dotson was capable of returning to his pre-injury work as there

was no evidence that Dr. Chandler, Dotson's orthopedist, lifted

                               - 4 -
Dotson's work restrictions.   The full commission affirmed, with

one dissent.   On appeal, employer relies on Dr. Blackwell's

October 14, 1999 handwritten treatment notes in contending that

the commission erred in finding it failed to establish that

Dotson was released to return to pre-injury work.

               Guided by well established principles,
          we construe the evidence in the light most
          favorable to the party prevailing below,
          claimant in this instance. "If there is
          evidence, or reasonable inferences can be
          drawn from the evidence, to support the
          Commission's findings, they will not be
          disturbed on review, even though there is
          evidence in the record to support a contrary
          finding."

Russell Stover Candies v. Alexander, 30 Va. App. 812, 825, 520

S.E.2d 404, 411 (1999) (quoting Morris v. Badger Powhatan/Figgie

Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986)).

               Consequently, where the commission
          resolves [a] conflict in medical testimony,
          on appeal the medical issue will not be
          "settled by judicial fiat," and the
          commission's decision is binding so long as
          it is supported by credible evidence. When,
          however, there is no conflict in the
          evidence or where there is no credible
          evidence to support the commission's factual
          findings, the question is the sufficiency of
          the evidence, which is a question of law.

Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872,

874 (1992) (quoting Johnson v. Capitol Hotel, 189 Va. 585, 590,

54 S.E.2d 106, 109 (1949)).

     Employer contends that here, the evidence is "undisputed."

Thus, employer argues that the question is one of sufficiency of


                               - 5 -
the evidence, a question of law suitable for our review on

appeal.   We disagree.

     First, employer misstates the standard of review.       It is

not a question of whether the evidence is "in dispute."

Instead, the issue on review is whether there is a "conflict in

the evidence" itself.    See id.    If no such conflict exists, the

question becomes one of sufficiency, a question of law to be

determined by this Court on appeal.

     In the present case there is a distinct conflict between

the medical opinion of Dr. Chandler, as opposed to that of Dr.

Blackwell.   Thus, the issue is a question of fact, not an issue

of law.   See Russell Stover Candies, 30 Va. App. at 826, 520

S.E.2d at 411 ("'[a] question raised by conflicting medical

opinion is a question of fact'" (quoting Commonwealth v. Powell,

2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986))).

     "It is firmly established that a finding by the

[c]ommission as to questions of fact, if supported by credible

evidence, is conclusive and binding upon us.     Moreover, this

rule also applies to facts found from conflicting expert

opinions."   Chandler v. Schmidt Baking Co., 228 Va. 265, 267-68,

321 S.E.2d 296, 297 (1984).

     Here, the credible evidence demonstrated that Dr. Blackwell

first placed Dotson on work restrictions on September 21, 1998.

On November 23, 1998, Dr. Chandler agreed with the

recommendation of restrictions to light duty.     Although

                                   - 6 -
Dr. Blackwell lifted the work restrictions he had placed on

Dotson on October 14, 1999, the commission found it relevant

that he noted in doing so that an orthopedic referral was still

pending.   On December 10, 1999, when Dotson saw Dr. Chandler,

his orthopedist, Dr. Chandler advised him to continue physical

therapy for his shoulder.   Further, Dr. Chandler did not lift

the work restrictions he had imposed during both the prior year

and in early 1999.   Thus, the commission resolved this conflict

in the physicians' opinions in Dotson's favor, as it had the

right to do.

     Although employer correctly points out that in response to

its inquiry, Dr. Chandler stated on June 3, 1999 that he could

not assert an opinion at that time as to Dotson's ability to

return to pre-injury work, employer neglects to recognize that

Dr. Chandler made this statement in reference to its request

that he make this determination based upon a mere review of

Dotson's medical records.   Dr. Chandler declined to opine as to

Dotson's status based upon the records alone.   However, when he

physically examined and treated Dotson on December 10, 1999, he

made no attempt to remove the restrictions he had imposed

several months earlier.   Thus, we find that the credible

evidence supports the commission's finding of fact in this

regard.

     We do not address employer's argument, suggested in a

footnote in its brief, that the commission erred in finding

                               - 7 -
employer had failed to properly raise the question of whether

Dotson's continued inability to work related only to his neck

injury.   Employer raised this argument only by stating that it

reserved the right to assert the argument "should Dotson argue

that the Full Commission also agreed with the deputy

commissioner's" finding in this regard.    Dotson raised no such

argument.   Therefore, we find that the issue is not properly

before this Court for our consideration.

     Accordingly, we affirm the decision of the commission.

                                                         Affirmed.




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