                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Salem, Virginia


KEEN DRILLING COMPANY, INC.
and
HARTFORD UNDERWRITERS INSURANCE COMPANY

v.         Record No. 1225-94-3        MEMORANDUM OPINION *
                                   BY JUDGE SAM W. COLEMAN III
JERRY ASA SMITH                           JUNE 20, 1995


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
             Sarah Y.M. Kirby (Cecil H. Creasey, Jr.;
             Jennifer G. Marwitz; Sands, Anderson, Marks & Miller,
             on brief), for appellants.

             Gregory R. Herrell (D. Edward Wise, Jr.; Arrington,
             Schelin & Herrell, P.C., on brief), for appellee.



     Keen Drilling Company appeals a denial by the Workers'

Compensation Commission of its application for change of

condition.    The issues on appeal are whether the commission erred

when it determined that the employer's application did not raise

the issue of causation and whether the commission erred by

determining that the employer failed to prove that the employee

could return to his pre-injury job status.    For the following

reasons, we affirm the decision of the commission.

     The complainant, Jerry Smith, sustained a compensable back

injury in 1992 while working as a drill helper for Keen Drilling

Company, Inc.    Smith received treatment from Dr. Timothy McGarry.

 Drs. Abeleda and Hill also treated Smith for related anxiety and
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
depression.   In 1993, Dr. McGarry prepared a letter report in

which he opined that there was no physical reason Smith could not

return to his pre-injury job status.    Psychological testing and

interviews showed that Smith still was suffering from anxiety and

depression.

     Keen filed an application for a change of condition based

upon the report of Dr. McGarry.    The application merely stated

that "Dr. McGarry, the [primary treating physician] has indicated

that employee is capable of returning to work regular duty."

Attached to the application was a letter from Dr. McGarry, which

stated:
     Dear Ms. Meade:

        I received your inquiry regarding the above
     captioned patient. Please find enclosed the pre-injury
     job description for consideration of releasing Mr.
     Smith to his pre-injury work.

        Based upon my evaluation of Mr. Smith and also in
     light of the evaluations by both Drs. Wood and Bachman,
     I find no definite physical reason why Mr. Smith should
     not be able to return to his pre-injury work status.
     However, I must qualify this statement somewhat in
     light of the markedly abnormal MMPI which Mr. Smith
     completed and which was read by Dr. Hill. As you note,
     it appeared that Mr. Smith's psychological profile was
     not related to his injury, but there is no question in
     my mind that his psychological profile significantly
     affects his current physical status. I think that Mr.
     Smith would definitely benefit from further psychiatric
     evaluation and feel in the longrun that this may be the
     answer to his significant problems.


     The deputy commissioner found that the application did not

raise a causation issue and determined that Smith could not

return to his pre-injury job status.    The commission affirmed the



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deputy commissioner's decision.

     Rule 13 (now Rule 14) mandates that an application for a

change of condition shall state the grounds for relief.       One

purpose of this portion of the rule is to provide due process

notice to the claimant so that he or she can prepare to be heard

on the issues raised in the application.       To raise the issue of

causation, an employer must do more than allege that the claimant

is able to return to work, Celanese Fibers Co. v. Johnson, 229

Va. 117, 326 S.E.2d 687 (1985), or by application state that the

claimant is able to return to work and include a standard

physician's form from the attending physician which states that

the employee can return to work.        Central Virginia Training

Center v. Martin, 2 Va. App. 188, 189-90, 342 S.E.2d 652, 653

(1986).   An employer must allege that the "effects of the injury

have fully dissipated and the disability is the result of another

cause."   Johnson, 229 Va. at 120, 326 S.E.2d at 690.

     While such allegations do not have to appear on the face of

the application, Suite v. Clinchfield Coal Co., 8 Va. App. 554,
383 S.E.2d 21 (1989), aff'd en banc, 9 Va. App. 492, 389 S.E.2d

187 (1990), the employer must at least reference the documents

from which the employee could gain notice of the issue and attach

the documents to the application.        See Suite, 8 Va. App. at 556,

383 S.E.2d at 22-23; see also Stump Trucking v. Stump, 12 Va.

App. 555, 404 S.E.2d 747 (1991).    Referencing and attaching the

documents must be done in such a way as to provide reasonable


                                  -3-
notice to the employee that the issue of causation will be

raised.

       In this case, the employer filed a change of condition

application which merely stated "Dr. McGarry, the PAP [primary

authorized physician] has indicated that the employee is capable

of returning to work regular duty."    The application does not

specify what, if any, report is relied upon, nor give the

employee any reason to reference any additional material to

understand the nature of the employer's claim.    Much like the

situation in Stump, the reference in the application to an

opinion of Dr. McGarry "failed to clearly identify the report so

as to give [Smith] adequate notice."     Id. at 558, 404 S.E.2d at

749.   The application does not indicate that the commission or

the employee needs to incorporate any additional forms to

determine which issues are raised.     From the face of the

application, the employee has no way of knowing that a causation

issue would be before the commission.     See Johnson, 229 Va. at

120, 326 S.E.2d at 689-90.

       Also, unlike the situation in Suite, the report upon which
Dr. McGarry's opinion was based was not referenced, nor was it

distinguished from other medical reports before the commission.

Because the application was not specific, Smith had no way of

determining what, if any, issue, other than disability, was

before the commission.   In light of due process, we note that the

letter that was attached to the application was couched in rather



                                 -4-
equivocal language.   Cf. Suite, 8 Va. App. at 556, 383 S.E.2d at

22.   Even if the letter had been referenced in the application,

Smith could not have known that the employer was alleging that

the "effects of the injury" had "fully dissipated" and that the

"disability was the result of another cause."    Since the face of

the application did not provide notice, see Johnson, 229 Va. at

120, 326 S.E.2d at 689-90, and Stump, 12 Va. App. 555, 404 S.E.2d

747, and the letter was unreferenced in the application and

contained equivocal references to Smith's injury, we affirm the

commission's decision.
      Keen also contends that the commission's finding that Smith

was not able to return to work was incorrect.    We disagree.

      On appeal we examine the evidence in the light most

favorable to the prevailing party below.   Christiansen v. Metro

Building Supply, 18 Va. App. 721, 723, 447 S.E.2d 519, 520

(1994).   If credible evidence exists in the record, we will not

disturb the commission's findings on appeal.     Rose v. Red's Hitch
& Trailer Service, Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395

(1990).   "The fact that contrary evidence may be found in the

record is of no consequence if credible evidence supports the

commission's finding[s]."   Manassas Ice & Fuel Co. v. Farrar, 13

Va. App. 227, 229, 409 S.E.2d 824, 826 (1991).

      The deputy commissioner found that the evidence showed that

Smith was still undergoing treatment for depression related to

his compensable injury and was, therefore, unable to return to



                                -5-
his pre-injury status.   Although Dr. McGarry's letter explaining

Smith's condition does state that Smith is physically able to

return to work, it does not eliminate the possibility that Smith

is mentally unable to return to work.   Dr. Abeleda opined that

Smith's poor psychological state was related to his compensable

injury.   Assuming for argument that McGarry's letter clearly

stated that Smith was fully able to return to his pre-injury

status, Dr. Hill's and Dr. Abeleda's reports would conflict with

Dr. McGarry's diagnosis.   When there is a conflict in the

evidence, we are bound by the commission's finding if supported

by credible evidence.    Imperial Trash Service v. Dotson, 18 Va.

App. 600, 603, 445 S.E.2d 716, 718 (1994).   Given the credible

evidence of the two examining physicians, Drs. Hill and Abeleda,

and the equivocal nature of Dr. McGarry's letter, we find

sufficient credible evidence in the record to support the

decision of the commission.

                                                          Affirmed.




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