                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and McClanahan
Argued at Salem, Virginia


JAMES NATHAN WALKER
                                           MEMORANDUM OPINION * BY
v.   Record No. 3391-02-3             JUDGE ELIZABETH A. McCLANAHAN
                                                JULY 22, 2003
GENERAL SHALE PRODUCTS CORP. AND
 LIBERTY MUTUAL FIRE INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             George L. Townsend (Chandler, Franklin &
             O'Bryan, on briefs), for appellant.

             Thomas G. Bell, Jr. (Timberlake, Smith,
             Thomas & Moses, P.C., on brief), for
             appellees.


     James Nathan Walker (claimant) appeals a decision of the

Virginia Workers' Compensation Commission denying his

application to reinstate award benefits based on a change in

condition.    Claimant complains that: (1) the commission erred in

holding that claimant's application was time-barred under Code

§ 65.2-708 because the limitations period should have been

tolled due to incapacity under Code § 65.2-528; (2) no credible

evidence supports the commission's finding that claimant was not

incapacitated during the limitations period; (3) the commission

erred by not addressing claimant's argument that estoppel and/or


     *
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
imposition barred employer from asserting the bar of the statute

of limitations; and (4) that the doctrine of imposition should

apply to save claimant's change-in-condition claim from the bar

of the statute of limitations. 1   For the reasons that follow, we

affirm the decision of the commission.

                           I.   Background

     Claimant was working for General Shale Products Corp. when,

on October 5, 1988, he suffered extensive, debilitating injuries

in a forklift accident.    Employer agreed that the injury was

compensable, and the commission awarded claimant lifetime

medical benefits and temporary total disability benefits.

     Claimant was hospitalized at the Medical College of

Virginia for eight to nine months immediately after the

accident, and for additional periods of time until 1994.    Since

that time, claimant has not been hospitalized, except for

occasional, injury-related psychiatric treatment.    He began

taking medication for depression and other psychological

disorders as early as 1989.

     In April 1994, claimant began treatment with Dr. Philip

Halapin, a psychiatrist.   Dr. Halapin met with claimant on a


     1
       We do not address claimant's questions 3 or 4 because they
were not properly preserved. Rule 3.1 of the Rules of the
Virginia Workers' Compensation Commission provides that failure
of a party to assign any specific error in its request for
review may be deemed by the commission to be a waiver of the
party's right to consideration of that error on review. This
Court will not consider those arguments for the first time on
appeal. Rule 5A:18.
                            - 2 -
quarterly basis throughout the time period at issue, mainly to

assess claimant's mental status and to adjust his medications as

necessary.

     On August 31, 1994, employer filed an application alleging

that between March and August 1994 claimant failed to keep

several medical reevaluation appointments with his treating

doctor at the Medical College of Virginia. 2   After a hearing on

the matter, a deputy commissioner found that claimant had

unjustifiably refused to undergo medical reevaluation and

suspended claimant's benefits.   The commission affirmed, stating

that as of August 31, 1994, benefits would remain suspended for

the duration of claimant's refusal to undergo medical

reevaluation.

     On November 5, 1998, claimant filed an application to

reinstate benefits based on a change in condition, stating that

he cured his refusal on September 22, 1995.    Employer asserted a

defense that the two-year statute of limitations for filing a

change-in-condition application had run; thus, claimant was

time-barred from having his benefits reinstated.    Claimant

conceded that the limitations period had run, but asked the

commission to find that the statute of limitations on his




     2
       Under the Workers' Compensation Act, an employer has the
right to have a claimant examined by a physician. Code
§ 65.2-607.
                            - 3 -
change-in-condition application was tolled, pursuant to Code

§ 65.2-528, due to incapacitation.

     After presentation of medical evidence at hearing, the

deputy commissioner found that claimant did not prove he was

incapacitated.   However, he reinstated claimant's benefits after

holding that the two-year limitations period for filing a

change-in-condition application did not apply because claimant's

benefits were suspended, not terminated.

     Upon request for review by employer, the commission

affirmed the deputy commissioner's finding that claimant did not

prove he was incapacitated.   However, it denied claimant's

change-in-condition application as time-barred under Code

§ 65.2-708(A), holding that the limitations period did apply to

benefits that had been suspended.    This appeal followed.

                            II.   Analysis

     In accordance with well established principles, we consider

the evidence in the light most favorable to the party prevailing

below.    States Roofing Corp. v. Bush Constr. Corp., 15 Va. App.

613, 616, 426 S.E.2d 124, 126 (1993).    "Factual findings by the

commission that are supported by credible evidence are

conclusive and binding upon this Court on appeal."    So. Iron

Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34

(1993).   The commission's findings, if supported by credible

evidence or reasonable inferences drawn from the evidence, will

not be disturbed upon review, even though the record may contain
                            - 4 -
evidence to support a contrary finding.    Morris v. Badger

Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d

876, 877 (1986).

          The Virginia Workers' Compensation Act defines a

"change in condition" as

          A change in physical condition of the
          employee as well as a change in the
          conditions under which compensation was
          awarded, suspended, or terminated which
          would affect the right to, amount of, or
          duration of compensation.

Code § 65.2-101.   Claimant's award suspension affected his right

to compensation.   Therefore, once there was a change in the

condition that was the cause for suspension, a

change-in-condition application was the appropriate vehicle with

which to seek reinstatement of benefits.

     Review of a change-in-condition application "shall not be

made after twenty-four months from the last day for which

compensation was paid . . . ."   Code § 65.2-708(A).   Claimant's

benefits were suspended on August 31, 1994; accordingly, the

statute of limitations required that his application to

reinstate benefits had to be reviewed before September 1, 1996.

Claimant made his application on November 5, 1998, well after

the limitation period had run.

     Claimant contends that, in his case, the statute of

limitations should have been tolled because he was mentally

incompetent.   Code § 65.2-528 states that under the Workers'

                             - 5 -
Compensation Act, a time limitation shall not run against any

person who is incapacitated. 3   The claimant has the burden to

prove by credible evidence that he "did not have sufficient mind

or reasoning powers to comprehend the ordinary affairs of life,

or that he had lost control of his mental power to such a degree

as to deprive him of sane and normal action" during the alleged

period of incapacity.   Rust Eng'g Co. v. Ramsey, 194 Va. 975,

982, 76 S.E.2d 195, 199-200 (1953).    The commission considered

medical evidence presented at hearing by claimant and by

employer.   Claimant's case rested primarily on an opinion

expressed in a letter written by his treating physician,

Dr. Halapin, on October 6, 1998, in which the doctor stated that

he diagnosed claimant with a psychotic disorder and

post-traumatic stress disorder.    The doctor opined that claimant

had diminished capacity from 1994 to the time of hearing due to

high doses of anti-psychotic medications; these drugs interfered

with claimant's capacity to function, to comprehend ordinary

affairs of life, and to reason to such a degree that it made it

impossible for him to comprehend, remember, and perceive

day-to-day events.   Dr. Halapin stated that he arrived at this




     3
       Code § 65.2-528 was amended effective January 1, 1998 to
substitute "incapacitated" for "mentally incompetent."
Claimant's alleged period of mental incompetence spans the
change in the statute. However, the amendment has no impact on
our analysis, as the term "incapacitated" is broader and
encompasses the term "mentally incompetent."
                            - 6 -
opinion after an extensive review of claimant's medical records

and from recollections of meetings with claimant.

     The commission found, however, that a review of the medical

records and notes made contemporaneously by Dr. Halapin during

his meetings with claimant did not support the doctor's

after-the-fact observations about claimant's capacity.    Over the

period of time at issue, during meetings with claimant, the

doctor wrote notes indicating that claimant was, "alert,"

"stable," had "no psychotic thinking," and was "coping

adequately."   Moreover, the evidence showed that Dr. Halapin had

claimant sign several legal documents between 1994 and 1998,

apparently never questioning claimant's competency to do so.

     In his deposition testimony, Dr. Halapin conceded that his

after-the-fact opinion letter of October 6, 1998 may have been

"a little overstated."   Additionally, Dr. Halapin candidly

admitted that he was interested in helping the claimant get his

benefits, which the commission noted was a well-meaning attempt

to help his patient, but did not overcome the fact that the

contemporaneous medical treatment records did not prove

incompetency or incapacity.

     Employer asked Dr. Joel Silverman, Professor and Chairman

of the Department of Psychiatry at the Medical College of

Virginia, to review claimant's medical records.   At hearing,

employer entered into evidence a February 12, 1999 letter from

Dr. Silverman to employer's counsel stating that claimant was
                            - 7 -
neither incompetent nor incapacitated.   He said, "there was

evidence that the patient was competent and had normal

capacity."    His opinion was that there was no evidence that

claimant was excessively sedated or that he had negative mental

effects from his medication.    He maintained that the medication

actually played a role in improving claimant's functionality,

and noted that a decrease in the medication exacerbated the

claimant's symptoms.

     The commission, as fact finder, was entitled to weigh the

medical evidence, and to accept Dr. Silverman's opinion as more

persuasive, and reject Dr. Halapin's opinion.   The commission

found Dr. Halapin's opinion was retrospective and inconsistent

with contemporaneous records, which did not support a finding of

incapacity.

     On appeal, this Court may not disturb a commission decision

that is supported by credible evidence, even if contrary

evidence exists.    Georgia Pacific Corp. v. Robinson, 32 Va. App.

1, 4-5, 526 S.E.2d 267, 268-69 (2000).   While this Court has

held that the opinion of a treating physician is entitled to

great weight, the law does not require that the treating

physician's opinion be accepted over that of others.     Pilot

Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339

S.E.2d 570, 572 (1986).   "Medical evidence is not necessarily

conclusive, but is subject to the commission's consideration and


                               - 8 -
weighing."     Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675,

677, 401 S.E.2d 213, 215 (1991).

     There is credible evidence in the record to support the

commission's finding that claimant failed to prove he was

incapacitated during the time period in which he was required to

file his application so as to toll the applicable statute of

limitations.    Accordingly, the decision of the commission is

affirmed.

                                                          Affirmed.




                               - 9 -
