                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia


VERONICA HELEN THOMAS
                                             OPINION BY
v.        Record No. 0018-96-4         JUDGE RICHARD S. BRAY
                                            JULY 2, 1996
NORDSTROM PENTAGON CITY/
 NORDSTROM, INC.


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
          Craig A. Brown (Ashcraft & Gerel, on briefs),
          for appellant.

          Michael N. Salveson (Hunton & Williams, on
          brief), for appellee.



     Veronica Helen Thomas (claimant) appeals a decision of the

Virginia Workers' Compensation Commission (commission),

complaining that the commission erroneously concluded that she

(1) failed to "timely request" a review of the deputy

commissioner's denial of her motion to dismiss the hearing

applications of Nordstrom Pentagon City/Nordstrom, Inc.

(employer), (2) was released to her pre-injury employment on

November 30, 1992, and (3) neglected to report earnings which

exceeded her pre-injury wage.   Finding no error, we affirm the

commission.

     On June 26, 1990, claimant sustained employment-related

injuries to her knees, hands, and back, and was awarded benefits

from employer for the resulting disability.   Beginning in

December, 1992, employer filed several motions with the

commission, each seeking suspension of the award, and attended by
applications for related hearings.       The first, received by the

commission December 24, 1992, alleged that claimant had been

released to her pre-injury employment on November 30, 1992, and

that any existing disability was not attributable to the

industrial accident.   A motion and application filed December 3,

1993, asserted that claimant had "procured" the subject benefits

through fraud and failed to report earnings in accordance with

Code § 65.2-712.   The third motion, received January 5, 1994,

alleged that claimant had been released to pre-injury employment

on December 9, 1993.
     Before referring these motions to the hearing docket, the

commission's Claims Division required employer to "pay

compensation [for two periods] pursuant to the . . . award," in

accordance with Rule 1.4(C). 1   Employer subsequently forwarded

claimant a check for $5,896.42 on May 26, 1994, $68 less than the

amount prescribed by the order.    Nevertheless, the matters were

all referred to the hearing docket on June 3, 1994, without

objection from claimant.

     In early September, 1994, claimant moved the commission to

dismiss the pending motions pursuant to Rule 1.4(C), contending

that employer had failed to fully satisfy the payment required by

the commission.    Shortly thereafter, employer paid claimant an

additional $100 to resolve the insufficiency and, on September
     1
      Rule 1.4(C) requires that "[c]ompensation . . . be paid
through the date the application was filed," subject to certain
inapplicable exceptions.



                                 - 2 -
14, 1994, the deputy commissioner denied claimant's motion. 2

Claimant did not request full commission review of this decision,

but included the issue in her appeal to the commission of the

deputy's later decision, which granted employer "all of the

relief requested in its applications for hearing."     On review,

the commission concluded that the ruling on claimant's Rule

1.4(C) motion to dismiss was res judicata and affirmed the

deputy's decision on all issues.
                    RES JUDICATA:   RULE 1.6(A)

     "The commission has the power to make and enforce 'rules not

inconsistent with [the Workers' Compensation] Act, for carrying

out the provisions of this Act.'"      Specialty Auto Body v. Cook,

14 Va. App. 327, 330, 416 S.E.2d 233, 235 (1992) (citation

omitted).   "When a challenge is made to the commission's

construction of its rules, 'our review is limited to a

determination whether the commission's interpretation of its own

rule was reasonable.'"   Id. (citation omitted).    The agency will

be "accorded great deference" and its interpretation of its rules

"will not be set aside unless arbitrary and capricious."
Virginia Real Estate Bd. v. Clay, 9 Va. App. 152, 159, 384 S.E.2d

622, 626 (1989), appeal dismissed, 398 S.E.2d 78 (Va. 1990).

     2
      Employer subsequently filed two additional motions and
applications for hearing, dated October 7, 1994, and November 4,
1994, respectively, both alleging claimant's failure to report
for independent medical examinations. All motions were
consolidated for hearing before the deputy commissioner on March
30, 1995.




                               - 3 -
     Rule 1.6(A) of the commission rules provides that "[a]

request for review of a decision accepting or rejecting a change

in condition claim or application shall be filed within 20 days

from date of the decision.   No oral argument is permitted."

Here, claimant failed within the time allotted by Rule 1.6(A) to

request a review of the deputy commissioner's initial ruling

denying her motion to dismiss the applications.     Accordingly, the

commission concluded that the deputy commissioner's determination

of the Rule 1.4(C) issue was res judicata.     See K & L Trucking

Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985).

 We find that the commission's application of Rule 1.6(A) was

reasonable and consistent with provisions of the Act and,

therefore, beyond our review. 3

                  RETURN TO PRE-INJURY EMPLOYMENT

     Under familiar principles, we view the evidence in the light

most favorable to the prevailing party, employer in this

instance.   R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211,

212, 390 S.E.2d 788, 788 (1990).     "It lies within the

commission's authority to determine the facts and the weight of

the evidence, and its findings in that regard, when supported by

credible evidence, will not be disturbed on appeal."       Rose v.

     3
      Contrary to claimant's assertions during oral argument, the
commission's construction and application of Rule 1.6(A) would
not require this Court to entertain appeals of such decisions as
a "final award." See Code §§ 17-116.04, 65.2-706; Holly Farms
Foods, Inc. v. Carter, 15 Va. App. 29, 34, 422 S.E.2d 165, 167
(1992).




                                  - 4 -
Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396

S.E.2d 392, 395 (1990).   "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).   "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).
     Dr. Juan L. Jammes, a neurologist, evaluated claimant on

November 30, 1992, and reported "no objective evidence of

disability."   Rather, he opined that claimant was "suffering from

functional overlay."   The commission found Dr. Jammes' report,

considered with other medical evidence and observations of

claimant "performing tasks . . . inconsistent with her claimed

disability," "sufficient to prove that . . . claimant was

released to return to her preinjury employment on November 30,

1992," a decision clearly supported by credible evidence.
                             EARNINGS

     Code § 65.2-712 provides, in pertinent part, that "[s]o long

as an employee receives payment of compensation . . . such

employee shall have a duty immediately to disclose to the

employer . . . any incarceration, return to employment or

increase in his earnings."

     It is uncontroverted that both before and after the accident

claimant was a "distributor" of Herbalife products and became a




                               - 5 -
Herbalife "supervisor" in June, 1991.      Her responsibilities

included ordering, receiving, storing, selling, packaging, and

delivering an array of Herbalife products.      Claimant's tax

returns indicated 1991 gross sales of $7,648.82, followed by

substantial annual increases, rising to approximately $73,000 in

1994.       Although claimant's tax records and testimony reflected

significantly less net income, the evidence indicated that she

repeatedly represented to others that her net earnings ranged

from $3,000 to $5,000 per month. 4     In assessing these conflicts

in the record, the commission characterized claimant's evidence

as "unpersuasive" and "[in]conclusive," concurred in the deputy's

finding that claimant was "not credible," and concluded that

claimant had earned a net income which exceeded her pre-injury

average weekly wage.      This factual finding is also well-supported

by credible evidence and will not be disturbed on appeal.

        Accordingly, we affirm the decision of the commission.

                                                  Affirmed.




        4
      Testimony established that claimant once proclaimed monthly
earnings of $8,000 to $10,000 to an audience attending an
Herbalife "seminar," leaving her "debt-free."



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