                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Haley and Beales
Argued at Alexandria, Virginia


MOUNT VERNON HOSPITAL AND
 INOVA HEALTH SYSTEM FOUNDATION
                                                               MEMORANDUM OPINION * BY
v.     Record No. 0088-08-4                                    JUDGE RANDOLPH A. BEALES
                                                                   NOVEMBER 4, 2008
BETTY LOU DEVERS


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Eric J. Berghold (McCandlish & Lillard, P.C., on briefs), for
                 appellants.

                 Craig A. Brown (Ashcraft & Gerel, LLP, on brief), for appellee.


       Mount Vernon Hospital and its insurer (collectively referred to hereinafter as employer)

appeal a decision of the Workers’ Compensation Commission awarding Betty Lou Devers

(claimant) permanent total disability benefits. Employer argues on appeal that 1) the evidence

was not sufficient to prove that claimant was totally disabled and was not sufficient to prove that

the problems with her left arm were related to her earlier, compensable workplace injury to her

right arm, 2) the deputy commissioner shifted the burden of proof to employer when the case

was remanded for reconsideration in light of after-discovered evidence produced by employer,

and 3) claimant did not file her claim within the appropriate statute of limitations. 1 For the

reasons stated below, we affirm the commission’s decision.


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Employer listed eleven overlapping Questions Presented on brief. However, neither on
brief nor in oral argument did it contend that each question presented raised a separate issue.
Claimant listed one additional Question Presented in her brief, asking this Court to review the
commission’s decision to admit the after-discovered evidence. As we affirm the decision of the
                                          I. Sufficiency

       Employer does not argue that no evidence supported the commission’s award of benefits

to claimant. Instead, employer insists that the evidence was not credible, especially given the

videotape that was introduced as after-discovered evidence. Employer argues that this videotape

proves that claimant’s testimony, and that of her experts, was not credible. Thus, employer

contends, the commission’s factual findings were not supported by credible evidence.

       Factual determinations are within the discretion of the commission and are “binding and

conclusive” on this Court if supported by credible evidence. Henrico Board of Supervisors v.

Taylor, 1 Va. App. 425, 430-31, 339 S.E.2d 565, 568 (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. 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.

Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citations

omitted).

       Dr. John Bruno, claimant’s treating physician for over ten years, testified that claimant

suffered from reflex sympathetic dystrophy (RSD) in her right arm, which employer agreed was

compensable with a 60% loss-of-use rating. The doctor explained that the RSD had “spread”

from the right arm to claimant’s left arm, which employer also agreed was compensable when

the left arm injury was rated as a 15% disability to that arm. 2 Dr. Bruno also explained that the



commission awarding to claimant the benefits that she requested, we do not address her question
presented since such an opinion effectively would be merely advisory. See Rice v. Rice, 49
Va. App. 192, 203, 638 S.E.2d 702, 708 (2006) (noting “this Court’s long-standing reluctance to
issue an advisory opinion”).
       2
         Employer agreed to a supplemental memorandum of agreement that compensated
claimant for her left arm injury at a 15% disability rating.

                                            -2-
initial compensable injury and the related surgery to claimant’s C5-6 disc created the need for

her later C6-7 disc surgery. He testified that, prior to that later surgery, claimant’s disability

rating for her left arm was 45%. He concluded that after the C6-7 surgery, claimant’s left arm

improved, and he adjusted his disability rating for that arm to 40%. Dr. Bruno also testified that

claimant’s case was the worst one that he had treated in over thirty years. He noted that,

although she could drive and do some things by herself, the problems with both arms prevented

her from working.

       Dr. Paul Miller essentially agreed with Dr. Bruno’s findings. Dr. Gabrial Gluck, who

saw claimant at the request of employer, also essentially agreed with Dr. Bruno’s findings.

Dr. Donald Hope, who testified for employer that claimant could perform some work,

nevertheless admitted that he respected Dr. Bruno and considered him an “excellent surgeon.”

Dr. Hope also acknowledged his respect for Dr. Gluck. A vocational expert testified that

claimant could not work on any schedule, whether full-time or part-time, given her injuries.

       Dr. Bruno did not change any of his opinions after reviewing the videotape taken by

employer’s investigator, finding the depictions in the video were consistent with his previous

observations of claimant.

       The commission, after reviewing all the evidence, found that claimant exaggerated the

extent to which her injury affected her ability to perform some everyday functions, given the

videotape showed her shopping alone at the grocery store when she testified that she could not

shop alone. However, this exaggeration did not discredit the entirety of her testimony, the

medical opinion of Dr. Bruno who had treated claimant for over ten years, and the other evidence

supporting her claim such that on appellate review this Court can find the commission erred, as a

matter of law, in accepting claimant’s experts’ conclusions. See Great Atlantic & Pacific Tea

Co. v. Robertson, 218 Va. 1051, 1053, 243 S.E.2d 234, 235 (1978) (noting that, if no credible

                                             -3-
evidence exists in the record to support the commission’s findings, then the issue becomes a

question of law). 3

        The deputy commissioner and the commission had credible evidence to support the

factual findings here. The deputy commissioner viewed the tape and evaluated its impact on the

credibility of claimant’s representations during the hearing and of the experts’ opinions.

However, as the commission pointed out, the video did not “establish[] that the claimant could

perform any type of gainful employment.” It only proved that claimant could do some shopping,

open and close a door, and “loop the strap of her purse over her shoulder” without apparent pain

during the limited time frame during which the videotaping occurred. It did not disprove the

underlying findings of Dr. Bruno, which were based on more than ten years of observation and

treatment, as he himself explained.

        The totality of the evidence supports the commission’s award. Therefore, we find the

commission did not err in finding claimant was entitled to permanent total disability benefits.

                                         II. Burden of Proof

        Employer argues that the deputy commissioner shifted the burden of proof to employer

when the case was remanded for reconsideration in light of the videotape’s introduction as

after-discovered evidence. Employer points to the deputy commissioner’s statement that “the

activities on the surveillance tape are [not] sufficient to establish that the claimant could utilize

her upper extremities in gainful employment” and that the videotape was “insufficient to warrant

a reversal” of the previous permanent total disability award.




        3
          We also note that employer agreed to several amendments to the initial memorandum of
agreement between the parties, which the commission then approved. The commission approved
a supplemental memorandum on July 1, 2004, that recognized the existence and compensability
of the left arm injury.

                                             -4-
        We agree with employer that claimant had the burden to prove that she was unable to use

her arms in any gainful employment in order to receive the permanent total disability benefits

that she requested. See Ogden Aviation Servs. v. Saghy, 32 Va. App. 89, 98-100, 526 S.E.2d

756, 760-61 (2000) (discussing a claimant’s burden of proof). However, the deputy

commissioner did not place this burden on employer. Employer basically misconstrues a

sentence in the deputy commissioner’s second opinion, without taking into account the posture

of the case at that point.

        Nevertheless, even if the deputy commissioner had improperly shifted the burden,

employer did not allege that the commission also improperly shifted this burden. 4 This Court

reviews the decisions of the full commission, not the deputy commissioner. Cf. Commonwealth

v. Bakke, 46 Va. App. 508, 516-17, 620 S.E.2d 107, 111 (2005) (explaining that this Court only

reviews issues considered by the full commission). In addition, this Court does not consider

arguments that are not preserved or argued on brief. Rules 5A:18, 5A:20; see also Parks v.

Parks, 52 Va. App. 663, 666 S.E.2d 547 (2008). Therefore, this argument is waived as to the

final award in this case – the award granted by the commission. See Code §§ 17.1-705(2),

65.2-705.

                                    III. Statute of Limitations

        Employer argues that claimant did not file her claim for the left shoulder injury within the

time period required by the statute of limitations, contending that Code § 65.2-601, which sets

forth the statute of limitations for original claims, and, thus, Shawley v. Shea-Ball Constr. Co.,

216 Va. 442, 219 S.E.2d 849 (1975), apply here and create a jurisdictional issue.


        4
         When specifically asked during oral argument whether the commission also shifted the
burden, employer alleged that the commission had. However, employer’s brief argues only that
the deputy commissioner shifted the burden, and employer did not object to the commission that
its award also shifted claimant’s burden of proof to employer.

                                            -5-
       Claimant filed an original claim in 1994, clearly within the two years for filing a claim

and giving the commission jurisdiction under Code § 65.2-601. She has received benefits from

employer every year since that original claim was filed. Employer appeals from the

commission’s award of benefits to claimant, and that award by the commission was based on a

change of condition in claimant’s original 1994 injuries. Thus, the appropriate statute of

limitations for the appealed claim is found in Code § 65.2-708, which governs the time period for

filing a claim based on a change of condition. Shawley, as it addresses the statute of limitations

for an original injury and not a change in condition of that original injury, is not applicable here.

216 Va. at 444-47, 219 S.E.2d at 851-53.

       As employer does not base this argument on Code § 65.2-708, any argument regarding

the statute of limitations is waived for failure to discuss the relevant legal principles. See Rule

5A:20(e); Parks, 52 Va. App. 663, 666 S.E.2d 547. In addition, employer did not make any

argument regarding the statute of limitations during the proceedings before the commission.

Therefore, under Rule 5A:18, we cannot consider this argument on appeal.

                                          IV. Conclusion

       We find the evidence was sufficient to support the commission’s award of permanent

total disability payments to claimant. Employer’s other arguments are waived. Therefore, we

affirm the commission’s award.

                                                                                           Affirmed.




                                             -6-
