                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


CITY OF MARTINSVILLE WATER AND SEWER AND
 VIRGINIA MUNICIPAL GROUP SELF-INSURANCE
 ASSOCIATION
                                           MEMORANDUM OPINION* BY
v.   Record No. 2753-98-2                   JUDGE ROBERT P. FRANK
                                                JULY 27, 1999
TIMOTHY SCOTT TURNER


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Richard D. Lucas (T. Borden Ellis; Carter,
          Brown & Osborne, P.C., on briefs), for
          appellants.

          Wesley G. Marshall for appellee.


     City of Martinsville Water and Sewer and its insurer

(appellant) assert that the Virginia Workers’ Compensation

Commission erred in finding:   1) a causal relationship between

the April 29, 1996 work-related injury and claimant’s back

disability and treatment after October 8, 1996, 2) a causal

relationship between the April 29, 1996 work-related accident

and claimant’s neck disability and treatment, 3) that claimant’s

treatment was reasonable and necessary, 4) that Dr. Joiner was

not claimant’s only authorized treating physician, 5) that Dr.

Knox, Dr. Mathern and Dr. Matthews were authorized treating


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
physicians, and 6) that claimant did not unjustifiably refuse

medical treatment.   For the following reasons, we affirm the

commission’s opinion dated October 29, 1998.

                          I.   BACKGROUND

     The parties are familiar with the record, and this

memorandum opinion recites only those facts necessary to the

disposition of the issues before the Court.

     On April 29, 1996, claimant strained his back while working

in a manhole.   He was manually forcing a rod into a clogged

sewer line when he felt a “bad pop” in his back and a “shock”

from the “top of [his] head to the bottom of [his] feet.”

Co-workers of claimant assisted him out of the manhole.   Then,

claimant’s supervisor drove him to the emergency room where he

was diagnosed with acute back strain and a possible herniated

nucleus pulposus.

     On May 1, 1996, claimant saw Dr. John Mahoney, an

orthopedic surgeon, who noted that his examination of claimant

indicated “pain across the lumbosacral junction with spasm.”

Claimant testified that he told Dr. Mahoney that he was

suffering from numbness in his left arm, but no record of arm

numbness occurs in Dr. Mahoney’s notes.

     Both the emergency room physician and Dr. Mahoney noted

that claimant had a history of spondylolisthesis.   It is well

documented in the record that claimant suffered prior injuries



                               - 2 -
to his back and had been diagnosed with spondylolisthesis as

early as 1987.

     Claimant underwent an MRI exam on May 3, 1996, which

revealed Grade I spondylolisthesis at L5-S1, minimal disc

protrusion at L3-4 and L4-5 with degenerative disc disease, and

“findings suspicious for herniated nucleus pulposus.”

     On May 7, 1996, Dr. Mahoney referred claimant to Dr. Eric

Korsh, an orthopedic surgeon, because he felt that claimant

should be “considered for surgical treatment.”   Dr. Korsh first

examined claimant on May 9, 1996.   Dr. Korsh noted that

claimant’s pain goes into “both buttocks and both legs,” “his

testicles,” and “down to his hamstrings.”   Dr. Korsh also

reported claimant’s complaint of neck discomfort and numbness

and tingling in the left arm.   Dr. Korsh’s notes reflect Grade I

spondylolisthesis, disk space narrowing at L5-S1, degenerative

disc disease, and a central disk herniation.   Dr. Korsh

recommended an “intensive course of physical therapy.”     Dr.

Korsh concluded his report by writing, “Hopefully I can continue

to treat him conservatively.”

     Dr. Korsh’s office notes reflect that on May 15, 1996,

claimant called with complaints of severe pain and numbness in

his left arm.    Claimant also complained of pain in his lower

back, right leg and neck.   Dr. Korsh wrote that he told claimant

that he wanted to pursue a conservative course of treatment.

Dr. Korsh ordered an MRI exam and x-rays of claimant’s neck.

                                - 3 -
     The MRI exam of the cervical spine indicated a bulging disk

at C4-5 and C5-6 and a herniation at C6-C7.   Dr. Korsh decided

to continue physical therapy.

     The physical therapist’s report of June 7, 1996 indicated

that claimant exhibited tenderness in his lower back and a

decreased C-6 reflex on the left and reported “occasional left

upper extremity pain.”   The physical therapist planned to treat

claimant with intermittent cervical traction and outpatient care

using ultrasound, pain reducing modalities, and strengthening

and conditioning programs for the neck, lower trunk and lower

extremities.

     On June 26, 1996, the physical therapist noted that while

claimant reported reduced cervical pain and no upper extremity

pain, he experienced “significant increases in his low back

pain.”

     On July 8, 1996, claimant reported increased lower back

pain, aching in his bilateral extremities, testicular pain and

“tightness” in his neck to the physical therapist.

     Dr. Korsh reported on July 18, 1996 that he would continue

to treat claimant with conservative measures.   Dr. Korsh stated

that he only would consider surgical intervention “if

[claimant’s] pain progresses to a level where he could not

tolerate it and he fails conservative management.”




                                - 4 -
     On July 26, 1996, claimant reported to the physical

therapist that he experienced loss of bladder control the

previous day as well as neck stiffness and testicular pain.

     On August 5, 1996, Dr. Ward W. Stevens, Jr., a

neurosurgeon, examined claimant.   Dr. Stevens’ diagnosis was

“acute low back strain associated with spondylolisthesis.”    Dr.

Stevens recommended that claimant undergo a CT/Myelogram before

considering a surgical approach and stated, “I would also

recommend that Mr. Turner delay a surgical approach as long as

he can with this type of diagnosis; and if he did undergo

surgery, the procedure of choice would be a decompressive

procedure and possible fusion.”

     On August 26, 1996, claimant told Dr. Korsh that any pain

relief he received from the physical therapy was temporary.     Dr.

Korsh reviewed claimant’s diskogram and noted that it showed

“positive concordant pain, very severe, at L4-5 along with

severe degenerative changes” and “concordant pain with

significant degenerative changes” at L5-S1.    The diskogram also

showed spondylolisthesis and spondylolysis.    Dr. Korsh indicated

that physical therapy would be continued for two months and,

then, additional options would be discussed.

     Claimant reported to Dr. R. Blake Dennis, an orthopedic

surgeon, on August 27, 1996 for a second opinion.   Dr. Dennis’

diagnosis was “lumbar disc sprain with pre-existing isthmic

developmental spondylolisthesis secondary to spondylolysis.”

                              - 5 -
Dr. Dennis stated that he would be reluctant to consider surgery

for claimant’s problem and felt that the success rate for such a

procedure would be no better than twenty percent.

         Over the next month, claimant continued to report to Dr.

Korsh with “exquisite” and “excruciating” pain.      Then, on

October 7, 1996, claimant told Dr. Korsh that the pain was no

longer tolerable and that he was getting worse every day.       Dr.

Korsh discussed surgery with claimant.      On October 9, 1996, Dr.

Korsh and Dr. Shumate performed a lumbar fusion at L4-5 and

L5-S1.

     On October 17, 1996, Dr. Korsh wrote that claimant was

experiencing “post operative discomfort.”      Dr. Korsh also noted

that claimant continued to experience neck pain, but indicated

that it would be addressed later.    Claimant was to begin a

three-month course of physical therapy.

     On October 28, 1996, Dr. Korsh’s office note states that

claimant is going to be permanently disabled from performing his

job duties.

     On December 3, 1996, claimant saw Dr. Korsh for “severe

neck and right arm pain.”    Dr. Korsh noted that claimant “has

pain going from the neck to both shoulders to both arms, though

the right is worse than the left.”       Claimant reported “numbness

and tingling in both arms.”    Dr. Korsh advised claimant not to

attempt aggressive measures unless the pain was such that he

could not live with it.    Claimant told Dr. Korsh that he could

                                 - 6 -
live with the pain and did not wish to undergo additional

surgery.

     On January 6, 1997, Dr. Korsh remarked that claimant’s

cervical spine MRI showed a “small central C4-5 disc herniation

with central right-sided C6-7 disc herniation which is much

larger and appears to be causing pressure on the existing C7

nerve root which does significantly correspond to this patient’s

symptoms.”    Dr. Korsh discussed surgery with claimant, but wrote

that he would only consider surgery, “if [claimant] felt that he

was not improving or in fact he was getting worse and could no

longer tolerate his pain.”

     On January 16, 1997, Dr. Korsh denied the request for a

functional capacity evaluation by Melissa Boone, claimant’s

nurse case manager, because claimant’s lumbar fusion was

performed just three months prior and the problems with his neck

were interfering with his rehabilitation progress.

Additionally, Dr. Korsh noted that he told Ms. Boone that

surgery might be required to correct claimant’s neck problems.

     In Dr. Korsh’s February 3, 1997 letter to Dr. Mahoney, he

stated, “Apparently [claimant] is having a problem with worker’s

comp covering him for this injury which occurred immediately and

concurrent with his low back problems.”

     On February 24, 1997, Dr. Korsh wrote to Dr. Mahoney:

             Currently his major complaints revolve
             solely around his neck and right arm.
             Subsequently at this point, due to failed

                                 - 7 -
            conservative measures, he has elected to
            proceed with surgical intervention. This
            will consist of an anterior cervical
            diskectomy and fusion at the C6-C7 level on
            2/26/97.

Dr. Korsh performed the anterior cervical diskectomy on February

26, 1997.

     On March 31, 1997, Dr. Korsh met with claimant, and they

discussed the onset of claimant’s back and neck problems.    Dr.

Korsh noted that claimant stated “unequivocally that the

cervical and lumbar problems are at the exact same time.”

     Dr. Korsh also met with Ms. Boone on March 31, 1997.     In

his written notes of the meeting, he recorded that Ms. Boone was

informed that claimant’s lumbar and cervical problems “occurred

at the same time and they occurred with his work related

incident.   They are absolutely connected and I explained that to

Ms. Boone.”

     On April 24, 1997, Dr. Korsh wrote to Ms. Boone pursuant to

her request for additional information about claimant.     As to

the relationship between the neck and back problems, Dr. Korsh

wrote:

                 Specifically Mr. Turner’s cervical
            complaints and surgical intervention is not
            at all related to his lumbar sprain. What
            it is related to is a work injury which
            occurred on 4/29/96. It just so happens
            that he injured his neck and his low back at
            the same time. As you know, there is no
            direct correlation between the neck and the
            low back, but what is correlated is the two
            injuries in the incident on 4/29/96 while he
            was at work. Since that point, he has had

                                - 8 -
            neck and low back complaints. He has had
            upper and lower extremity complaints and
            these are all directly related to the
            incident on 4/29/96.

(Emphasis in original).

     On June 2, 1997, Dr. Korsh met with Ms. Boone.    Claimant

was not present for the meeting.   Dr. Korsh’s record of the

meeting stated, “We have made the decision to send [claimant] to

Dr. Murray Joiner for conservative management and more

aggressive rehab.”

     On June 9, 1997, claimant reported to Dr. Korsh that he had

no neck pain but that he was experiencing some low back pain and

pain in the left leg.   Dr. Korsh noted that the cervical spine

showed a “solid stable appearing fusion.”   Dr. Korsh’s notes

indicate that he informed claimant that he was closing his

practice:

                 I told him I would make an appropriate
            referral to a surgeon or a rehab physician
            for continuation of care. I recommended
            that he see Dr. Murray Joiner for
            continuation of his treatment. The patient
            requested an appointment with Dr. Knox. I
            reiterated my recommendation to see Dr.
            Joiner, but I told him that if he felt like
            he wanted to see Dr. Knox I would make an
            appointment for him to see Dr. Knox. The
            patient will consider who he wishes to see
            for follow up and contact my office.

     Claimant testified before the deputy commissioner on

October 7, 1997 that Dr. Korsh told him about the decision by

Ms. Boone and Dr. Korsh to refer claimant to Dr. Joiner.

Claimant stated that he told Dr. Korsh that he would prefer to

                                - 9 -
choose a new doctor from a panel of physicians.   Dr. Korsh then

mentioned a doctor in Danville, Dr. Hallett Mathews, Dr. Joiner

and Dr. Cecil B. Knox.   Claimant told Dr. Korsh that he would

like to see Dr. Knox for pain control and Dr. Mathews should he

require hardware removal.   Claimant testified that Dr. Korsh

arranged his appointment with Dr. Knox.

     Dr. Korsh met with Ms. Boone on June 23, 1997.   Dr. Korsh’s

notes of the meeting reflect that he explained to Ms. Boone that

he referred claimant to Dr. Joiner, but that claimant requested

an evaluation with Dr. Knox.   In the same note, Dr. Korsh wrote

that Ms. Boone was informed that claimant knew Dr. Korsh’s

referral was Dr. Joiner, but that Dr. Korsh told claimant that

he could make an appointment with Dr. Knox.   Dr. Knox examined

claimant on October 1, 1997.

     Dr. Joiner examined claimant on July 21, 1997.   Dr. Joiner

could not relate claimant’s cervical spine and neck pain to the

work-related incident on April 29, 1996.   Dr. Joiner noted that

claimant should have reported the onset of symptoms in the neck

immediately or within seventy-two hours of the injury.   Dr.

Joiner, therefore, could not relate the cervical fusion surgery

to the work-related incident on April 29, 1996.

     On July 21, 1997, Dr. Korsh wrote the following to Dr.

Mathews:

           Timothy Turner is a patient of mine. He has
           suffered a workers [sic] compensation
           injury. He subsequently underwent a lumbar

                               - 10 -
           decompression stabilization as well as an
           anterior cervical diskectomy and fusion.

           As you are aware, I will be relocating my
           practice. Mr. Turner has requested a
           referral to you for follow up care. If you
           do have any questions regarding him please
           feel free to contact me.

     Claimant was examined by Dr. Bruce Mathern, Dr. Mathews’

associate, on July 29, 1997.    Dr. Mathern’s office note stated,

“Mr. Turner is a very complex patient referred from the Roanoke

area by both Dr. Korsh and Dr. Widmeyer.”      Dr. Mathews examined

claimant on August 13, 1997.

     Appellant denied claimant’s claim and ceased payment of

benefits to him in July 1997.

    II.    CAUSAL CONNECTION OF BACK DISABILITY AND TREATMENT

     Appellant contends that claimant did not prove a causal

connection between the April 29, 1996 workplace accident and his

back disability and treatment after October 8, 1996.      We reject

that contention.

     “‘Factual findings of the [Workers’ Compensation]

Commission will be upheld on appeal if supported by credible

evidence.’”   Tumlin v. Goodyear Tire & Rubber Co., 18 Va. App.

375, 378, 444 S.E.2d 22, 23 (1994) (quoting James v. Capitol

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488

(1989)).   “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.


                                - 11 -
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citing

Capitol Steel Constr. Co., 8 Va. App. at 515, 382 S.E.2d at

488).    “In determining whether credible evidence exists, the

appellate court does not retry the facts, reweigh the

preponderance of the evidence, or make its own determination of

the credibility of the witnesses.”       Id. (citing Jules

Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 69, 334 S.E.2d

592, 595 (1985)).    Causation is a factual finding that will not

be disturbed on appeal if supported by credible evidence.       See

C.D.S. Const. Services v. Petrock, 218 Va. 1064, 1070, 243

S.E.2d 236, 240 (1978).    “‘A question raised by conflicting

medical opinion is a question of fact.’”       Dan River, Inc. v.

Turner, 3 Va. App. 592, 596, 352 S.E.2d 18, 20 (1987) (quoting

Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533

(1986)).

        The commission was presented with conflicting medical

evidence as to the causation of the back disability and related

treatment after October 8, 1996.    Dr. Korsh, claimant’s

authorized treating physician, opined that the back injury and

treatment was causally related to the work-related incident on

April 29, 1996.    The commission placed great weight on the

diagnosis and opinion of Dr. Korsh.      We, therefore, find that

there is credible evidence in the record to establish a causal

connection between the accident on April 29, 1996 and claimant’s

continued back disability and treatment.

                                - 12 -
                 III.   CAUSAL CONNECTION OF NECK INJURY

        Appellant contends that claimant did not establish a causal

connection between the April 29, 1996 workplace accident and the

injury to his neck.     We reject that contention.

        Dr. Korsh repeatedly opined that claimant’s neck condition

was related to the workplace injury that occurred on April 29,

1996.    Dr. Joiner, however, did not believe that the neck

condition was causally related to the April 29, 1996 incident

because claimant did not report neck pain within seventy-two

hours.    Additionally, there was evidence that claimant had been

treated for neck problems prior to the occurrence of the

workplace accident.     The commission accepted Dr. Korsh’s opinion

as to the relationship between claimant’s neck condition and the

workplace accident.     We find that there was credible evidence in

the record to support the commission’s finding.

          IV.   NECESSITY AND REASONABLENESS OF THE TREATMENT

        Appellant contends that the commission erred in finding

that claimant’s lumbar and cervical fusions were reasonable and

necessary.      We reject appellant’s position.

        “‘[T]he question of whether the disputed medical treatment

was necessary within the meaning of Code § 65.2-603 is a mixed

question of law and fact.’”      Papco Oil Co. v. Farr, 26 Va. App.

66, 73, 492 S.E.2d 858, 861 (1997) (quoting Lynchburg Foundry

Co. v. Goad, 15 Va. App. 710, 712-13, 427 S.E.2d 215, 217

(1993)).    “Accordingly, the commission’s conclusions as to the

                                 - 13 -
necessity of the disputed medical treatment are not binding upon

this Court.”    Id. at 73-74, 492 S.E.2d at 861.   However, “‘so

long as a causal relationship between the industrial accident

and the . . . [treatment rendered] is shown, the employer is

financially responsible for the medical attention which the

attending physician deems necessary.’”    Id. at 74, 492 S.E.2d at

861 (quoting Goad, 15 Va. App. at 714, 427 S.E.2d at 217-18).

     As discussed earlier, we believe that there is credible

evidence to support the commission’s finding that there was a

causal connection between the April 29, 1996 workplace accident

and claimant’s back and neck injuries.   Dr. Korsh, claimant’s

treating physician, believed that the surgeries were necessary

to treat claimant’s back and neck injuries.   Initially, Dr.

Korsh attempted to conservatively manage claimant’s back and

neck conditions with physical therapy and prescription pain

medication.    After several months, claimant’s pain continued to

increase.   Dr. Korsh concluded that surgery, first for the

lumbar back, and then for the neck, could improve claimant’s

condition and decrease his pain.   Dr. Korsh’s initial attempts

to avoid surgical intervention and his ultimate conclusion that

claimant’s back and neck pain could improve with surgery support

the conclusion that claimant’s treatment was necessary and

reasonable.    We, therefore, affirm the commission’s holding that

claimant’s treatment was necessary and reasonable.



                               - 14 -
                V.   AUTHORIZED TREATING PHYSICIANS

     Appellant contends that the commission erred in not

recognizing Dr. Joiner as claimant’s authorized treating

physician and in reversing the deputy commissioner’s ruling that

Drs. Mathews, Mathern and Knox were not authorized treating

physicians.   We reject that position.

     “Whether an employer is responsible for medical

expenses . . . depends upon . . . (3) whether the treating

physician made a referral to the patient.”    Volvo White Truck

Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).

It is, therefore, a question of fact for the commission to

determine whether a referral was made.   On appeal, we do not

disturb the commission’s findings of fact if supported by

credible evidence.   See Carter v. Hercules Powder Co., 182 Va.

282, 288, 28 S.E.2d 736, 739 (1944).

     The commission clearly relied on claimant’s deposition

testimony that Dr. Korsh, when contacted by claimant regarding

Korsh’s relocation, told claimant that he and Ms. Boone agreed

on Dr. Joiner but that it was ultimately claimant’s choice as to

which doctor he was referred.    Further, Dr. Korsh’s office note

of June 9, 1997 substantiated claimant’s deposition testimony.

Dr. Korsh noted that he recommended Dr. Joiner but claimant

requested a referral to Dr. Knox.    Dr. Korsh wrote that he told

claimant he would make him an appointment with Dr. Knox.    Dr.

Korsh indicated that claimant would contact Dr. Korsh’s office

                                - 15 -
after he considered which doctor he wished to see for follow-up

care.

        Dr. Korsh, then, sent a request to Dr. Knox for an

appointment for claimant on June 12, 1997 by facsimile

transmission.

        On July 21, 1997, Dr. Korsh wrote a letter to Dr. Mathews

stating that he was relocating his practice and his patient, Tim

Turner, requested a referral to Dr. Mathews for follow-up care.

Dr. Mathern, Dr. Mathews’ associate, noted in his office notes

from claimant’s initial visit on July 29, 1997, that claimant

was referred by Dr. Korsh.

        Appellant relies on Dr. Korsh’s office notes that state

that while the claimant requested an appointment with Dr. Knox,

his referral was to Dr. Joiner.

        The commission believed that Dr. Korsh, in attempting to

accommodate the wishes of both Ms. Boone and claimant, created a

situation where Ms. Boone believed the referral was to Dr.

Joiner and claimant believed the referral was to Drs. Knox and

Mathews.

        The commission found that there was evidence to support

claimant’s assertion that he was referred to Drs. Knox, Mathews

and Mathern.    We find that there is credible evidence in the

record to support the commission’s finding and, therefore, hold

that Drs. Knox, Mathews and Mathern were claimant’s authorized

treating physicians.

                                - 16 -
        VI.   UNJUSTIFIABLE REFUSAL OF MEDICAL TREATMENT

     Appellant asserts that claimant unjustifiably refused

medical treatment by electing not to return to Dr. Joiner for

additional treatment.

     We believe that this issue is resolved by our affirmance of

the commission’s finding that Drs. Knox, Mathews and Mathern

were authorized treating physicians.    We find that claimant did

not unjustifiably refuse medical treatment from Dr. Joiner as he

was receiving authorized medical treatment from Drs. Knox,

Mathews and Mathern.

                        VII.   CONCLUSION

     For these reasons, we hold that claimant’s back and neck

disabilities and treatment were causally related to the

work-related accident on April 29, 1996.    We also hold that the

commission’s ruling that claimant’s treatment was necessary and

reasonable, that Drs. Knox, Mathews and Mathern were authorized

treating physicians, and that claimant did not unjustifiably

refuse medical treatment is supported by credible evidence.

Therefore, we affirm the decision of the commission.

                                                           Affirmed.




                               - 17 -
