                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Salem, Virginia


VIRGINIA ELECTRIC & POWER COMPANY
                                           MEMORANDUM OPINION* BY
v.   Record No. 2939-00-3              JUDGE RUDOLPH BUMGARDNER, III
                                              DECEMBER 11, 2001
WILLIAM FREZELL CRAWFORD


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Iris W. Redmond (Susan Moloney Smith;
            Midkiff, Muncie & Ross, P.C., on brief), for
            appellant.

            A. Thomas Lane, Jr., for appellee.


     Virginia Electric & Power Company appeals the Workers'

Compensation Commission's award of benefits to William Frezell

Crawford.    The employer contends the commission erred in finding

the worker (1) established a change in condition, (2) was not

barred by the statute of limitations, and (3) was not estopped

from asserting his claim.    For the following reasons, we affirm.

     The award arises from a change of condition application

filed February 22, 1999.    It alleged the worker's condition from

a 1992 injury had deteriorated to a temporary total disability.

The deputy commissioner awarded benefits, and the commission

affirmed the award.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     The worker suffered a compensable injury by accident to his

back on January 17, 1992 while working as a lineman.   On

February 27, 1992 he had L5-S1 surgery and has suffered from S1

radiculopathy on the right side since then.   He received a number

of different awards after the 1992 injury, was restricted to

light duty, and worked thereafter in selective employment as a

meter reader.

     The worker twisted his back exiting a truck in March, 1997.

The employer terminated the worker in April, 1997 when he was no

longer able to work.    He continued to have pain and weakness in

his back and legs, wore a lumbar support belt and had a second

laminectomy on October 30, 1997.   After the operation his pain

increased, and he needed a walker.

     The worker applied for benefits alleging the injury arose

out of the March, 1997 accident.   He maintained that he could

never go back to work because of that injury to his back, but

the commission found that the injury did not arise out of the

March, 1997 accident.    This Court affirmed the commission on

October 5, 1999.    The worker then proceeded with this change of

condition application.

     First, we review the finding that the worker proved his

current condition was a change of condition of the injury

received in 1992.   We review the evidence in the light most

favorable to the worker, the prevailing party below.    R.G. Moore



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Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788,

788 (1990).

     In an application for review of an award on the ground of a

change in condition, the worker has the burden to prove his

allegations by a preponderance of the evidence.     J.A. Jones

Constr. Co. v. Martin, 198 Va. 370, 373, 94 S.E.2d 202, 204

(1956).   The commission's determination of causation is a

factual finding that is binding on appeal when supported by

credible evidence.    Wagner Enters., Inc. v. Brooks, 12 Va. App.

890, 894, 407 S.E.2d 32, 35 (1991).     "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.

(citation omitted).

     After the laminectomy in October, 1997, the worker had

increased pain and was unable to walk without a walker.    On

June 8, 1998, Dr. E. Franklin Pence, Jr. opined, "[B]ased on my

examinations of the patient combined with the above testing and

conversations with the patient's physical therapists, he has

been and is still unable to work including a sedentary type

position."    Dr. Pence confirmed the presence of a radiculopathy

on the right side and noted the "onset of pain in 1992."

     Dr. David S. Klein examined the worker on July 6, 1999 and

opined, "Clearly, the patient is suffering from the injury



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sustained in 1992, which never resolved, resulted in a second

surgery and worsening following that."

     Dr. Bart W. Balint also examined the worker and reviewed

his medical records.   He opined on December 20, 1999:   "[The]

case is one of clear causality between his Worker Comp injury of

1992 and subsequent picture presenting at this time.     His early

studies show significant disc changes at both L4-5 and L5-S1.

Unfortunately, his second work related injury caused the L4-5

disc to rupture and cause significant problems."    Dr. Balint

concluded in a letter to the worker's counsel:   "It is my

medical opinion that more probably than not, the above diagnosed

conditions as correlated to [the worker] are directly related to

[his] January 17, 1992 industrial accident.   Furthermore, it is

my medical opinion that Mr. Crawford is totally disabled as a

result of the January 17, 1992 industrial accident."

     Dr. Willie Thompson reviewed the worker's medical records

at the employer's request.    Dr. Thompson was "unable to

establish a causal relationship between the patient's present

symptoms and the injury of January 17, 1992."    He concluded it

was "impossible to relate the patient's present symptoms to a

fall that occurred in January of 1992" and was in "total

disagreement" with Dr. Balint's opinion.

     Medical evidence is subject to the commission's

consideration and weighing.    Hungerford Mech. Corp. v. Hobson,

11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).   Drs. Klein

                                - 4 -
and Balint attributed the worker's current disability to his

1992 injury.    They had reviewed the worker's medical records and

examined him.    While Dr. Thompson totally disagreed with their

conclusion, he never examined the worker.   As a result, the

commission gave Dr. Thompson's opinion little weight.     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., 12 Va. App. at 894, 407

S.E.2d at 35.    We conclude the commission did not err in finding

that the worker proved a change in condition and that such

change was caused by the 1992 injury.

     Next, we consider whether the statute of limitations or

doctrine of estoppel barred the worker's change-in-condition

claim.    The commission ruled that Code § 65.2-708 controlled and

subsection (C) 1 extended the statute of limitations to March,

1999, which made the February, 1999 claim timely.   The

commission also ruled estoppel did not bar the claim because

"the present Claim was not 'inconsistent' with prior

     1
         Code § 65.2-708(C) provides:

            All wages paid, for a period not exceeding
            twenty-four consecutive months, to an
            employee (i) who is physically unable to
            return to his pre-injury work due to a
            compensable injury and (ii) who is provided
            work within his capacity at a wage equal to
            or greater than his pre-injury wage, shall
            be considered compensation.



                                - 5 -
litigation," and it was "for benefits relating to disability

that was established by medical evidence dated after March

1997."

     The employer maintains the applicable statute of

limitations is the one-year limitation in Code § 65.2-501.    That

section applies when the worker has not had a change in

condition and is at the same disability level before and after

an award.   Armstrong Furniture v. Elder, 4 Va. App. 238, 244,

356 S.E.2d 614, 617 (1987) (citing Code § 65.1-56, now Code

§ 65.2-501).   This case was a claim for change of condition:

the worker had returned to light duty work, payments had ceased,

and he claimed he was currently totally disabled.    Having

concluded the evidence supported the commission's finding of a

change of condition, we also conclude that Code § 65.2-501 does

not control.

     Code § 65.2-708(A) establishes a two-year statute of

limitations for a change of condition application.   Subsection

(C) extends that period "to prevent employers from lulling

partially disabled workers into a false sense of security during

this two year period by providing employees light duty work at

their pre-injury wage for two years and then terminating the

employee without liability for future disability benefits."

Scott v. Scott & Am. Cas. Co., 16 Va. App. 815, 819, 433 S.E.2d

259, 262 (1993) (citation omitted).



                               - 6 -
        In this case, the worker was restricted to light-duty work

and worked as a meter reader after 1992.    The medical records

demonstrate continued weakness in his back and legs, inability

to walk or sit for long periods of time, radiculopathy on the

right side, and continued lifting and climbing restrictions.

The worker never returned to his work as a lineman and was

unable to do that work.    The employer paid the worker for

selective employment as a meter reader in lieu of benefits at a

wage equal to or greater than his pre-injury wage until March,

1997.    The two-year statute of limitations did not run until

March, 1999, making the worker's application filed February,

1999 timely.

        Finally, we consider whether the worker is estopped from

claiming a change of condition.    The employer contends that the

worker asserted facts inconsistent with those used to prove his

earlier claim that the March 17, 1997 accident caused his

current disability.    It maintains the worker filed the identical

claim and alleged the 1992 accident caused the same condition

after the commission found against him on the first claim.

        We are not able to review this part of the decision by the

commission because the appendix does not include the

commission's earlier opinion or the evidence given in support of

the first claim.    We cannot decide the issue of estoppel without

that information.     Anderson v. Commonwealth, 251 Va. 437, 439,

470 S.E.2d 862, 863 (1996) (adequate record required to consider

                                 - 7 -
estoppel argument).    Rule 5A:25(C)(3) provides that "[a]n

appendix shall include . . . any testimony or other incidents of

the case germane to the questions presented."    "The appendix is

a tool vital to the function of the appellate process in

Virginia. . . .   By requiring the inclusion of all parts of the

record germane to the issues, the Rules promote the cause of

plenary justice."     Thrasher v. Burlage, 219 Va. 1007, 1009-10,

254 S.E.2d 64, 66 (1979).    Because the appendix does not contain

essential parts of the record, we do not decide this issue.

     For the reasons stated, we affirm the commission's award of

benefits.

                                                          Affirmed.




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