                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia


PHILIP MORRIS USA and
 TWIN CITY FIRE INSURANCE COMPANY
                                        MEMORANDUM OPINION * BY
v.       Record No. 0832-96-2          JUDGE SAM W. COLEMAN III
                                           JANUARY 21, 1997
CARLA RENE MARSHALL


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           J. Mark DeBord (Hunton & Williams, on
           briefs), for appellant.

           Louis D. Snesil (Laura L. Geller; McDonald &
           Snesil, on brief), for appellee.



     Philip Morris USA and Twin City Fire Insurance Company, the

employer, appeal the Workers' Compensation Commission's award to

Carla Rene Marshall, the claimant, of temporary total and

permanent partial disability benefits based upon her change in

condition application pursuant to Code § 65.2-708.    Philip Morris

contends that the commission erred by (1) revisiting and

reconsidering its November 1992 award and agreed statement of

fact holding that the claimant was not disabled and could return

to work in September 1992, (2) reversing the deputy

commissioner's finding that the claimant had failed to meet her

burden of proof that she was disabled as a result of her injury,

(3) reversing the deputy commissioner's determination that the

claimant was not entitled to permanent partial disability
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
benefits, and (4) awarding benefits after finding that the

claimant abandoned her designated treating physician.   We hold

that the November 1992 agreed statement of fact and award finding

that the claimant could return to her pre-injury employment did

not preclude her from claiming and proving a change of condition.

We further hold that the evidence is sufficient to support the

commission's finding of a change in condition and that the

claimant was disabled and entitled to temporary total and

permanent partial disability benefits.   Accordingly, we affirm

the commission's decision.
     On August 28, 1992, the claimant, who worked as a press

operator, was injured when the press fell on her right hand.     The

employer accepted the injury as compensable, and the parties

entered into a Memorandum of Agreement for payment of temporary

total disability compensation beginning September 5, 1992.     In

the Agreement, the parties identified the injury as a "contusion

to finger."   The parties then executed an Agreed Statement of

Fact in which the claimant stated that she was able to return to

her pre-injury work on September 8, 1992.   The commission

approved the Memorandum of Agreement and entered an award

granting temporary total disability benefits from September 5,

1992 through September 7, 1992.   Neither party appealed the

award.

     On July 13, 1994, the claimant filed an application alleging

a change in condition and requested both temporary total and




                               - 2 -
permanent partial disability benefits.   At the hearing, the

employer defended on the grounds that the evidence showed neither

a temporary total disability nor a permanent partial disability

and that the claimant had abandoned her treating physician which

disqualified her for benefits.

     The evidence showed that immediately after the accident the

claimant saw Dr. Claiborne Irby who diagnosed her injury as a

contusion of the right hand.   After Dr. Irby reviewed the

claimant's job description and talked with her, Dr. Irby released

the claimant to go back to work on September 7, 1992.

Dissatisfied with Dr. Irby's treatment and evaluation, the

claimant requested that Philip Morris refer her to another

doctor, and she was referred to Dr. Stephen Leibovic, who saw the

claimant on September 25, 1992.    Dr. Leibovic found that the

claimant had a positive Tinel's sign in her right forearm that

was absent in the left. Dr. Leibovic's office notes stated:
          I believe that Ms. Marshall has mild carpal
          tunnel syndrome bilaterally, the right
          somewhat worse than the left. In fact,
          probably what happened is that she may have
          had predisposition to this condition, as
          indicated by the mild involvement on the
          left, and the injury may have exacerbated it.


Dr. Leibovic was of the opinion that the claimant's carpal tunnel

syndrome was related to her accidental injury, but that she was

not disabled from performing her pre-injury occupation.   However,

he did impose a zero to fifty pound lifting restriction and

advised against repetitive movements.




                                 - 3 -
     In June 1994, the claimant saw Dr. Charles Bonner to obtain

an evaluation of permanent impairment.   Dr. Bonner's report

stated:
            Based on the patient's complaint of pain and
            discomfort in the upper extremity associated
            with the history of decreased activities of
            daily living and avocational activities and
            sleep and on the review of medical records
            from Dr. Leibovic documenting carpal tunnel
            syndrome it is my conclusion this patient has
            a 15% permanent partial impairment of the
            upper extremity due to the traumatic carpal
            tunnel syndrome.

In a letter to claimant's counsel on May 31, 1995, Dr. Bonner

stated that the claimant's carpal tunnel syndrome was caused by

the traumatic injury on August 28, 1992.

     At the deputy commissioner's hearing, the claimant testified

that after the accident, she went to Philip Morris' medical

department and, without being offered a panel of physicians, she

was referred to Dr. Irby.   After seeing Dr. Irby, she requested a

second opinion and the employer sent her to Dr. Leibovic, whom

she saw one time.   The claimant testified that she did not see

Dr. Leibovic again because she was told by Philip Morris'

director of occupational health services, Dr. Constance Hanna,

that Philip Morris would not pay for further treatment by Dr.

Leibovic.   Dr. Hanna testified by deposition that the claimant

was offered a panel of physicians by Philip Morris' nurse and

that the claimant chose Dr. Irby.   Dr. Hanna also testified that

she never told the claimant that Philip Morris would not pay her

workers' compensation benefits.



                                - 4 -
     The claimant testified that she returned to work on

September 8, 1992, but, after attempting to do so, was not able

to perform her job duties due to her injury.    She stated that she

could only use one of her hands and that she could not keep up

with her work so her supervisor,
          would put me in a room by myself and make me
          stay in that room during the whole entire
          shift. Sometimes they would come in and make
          me go back out on the floor to try to do the
          job, and then when I couldn't do it they
          would put me back in the room again, and they
          would make me stay in the room during the
          whole entire shift, the office.

Philip Morris discharged the claimant in November 1992 because,

according to the claimant, "they said they didn't have any work

for me to do, they didn't have a job for me."   The employer

presented no evidence concerning the claimant's discharge.

     The deputy commissioner found that the claimant failed to

prove a change in condition and denied the claims for temporary

total and permanent partial disability.   Specifically, the deputy

held that the claimant did not prove that her disability was

causally related to her accidental injury, or that she had

reached maximum medical improvement, or that she had a permanent

disability.   The deputy based his holding, in part, upon the

factual findings that the claimant failed to prove her light duty

restrictions prevented her from doing her pre-injury work, that

Dr. Leibovic's report was "conflicting and ambiguous," and that

Dr. Bonner failed to explain a basis for his opinion that the

carpal tunnel syndrome was traumatic in origin.   Thus, the



                               - 5 -
claimant failed to prove a causal relation between her disability

and the accidental injury.   Furthermore, the deputy held that Dr.

Leibovic was the claimant's treating physician and that treatment

by Dr. Bonner was unauthorized.

     The full commission reversed the deputy commissioner's

decision and awarded benefits based upon a finding that the

claimant proved a change in condition.   The commission found

that, due to the claimant's traumatic carpal tunnel syndrome, she

was unable to perform her pre-injury job and that her attempt and

subsequent inability to do the work were better evidence of her

disability than the medical opinions stating that she could

return to work.   The commission also held that the claimant was

entitled to permanent partial disability based upon Dr. Bonner's

finding that she had a 15% permanent disability in her right hand

as a result of carpal tunnel syndrome caused by her August 28,

1992 injury by accident.   Although the claimant was only

partially disabled, the commission held that she was entitled to

temporary total disability benefits because as a partially

disabled employee, she had been terminated and had made a

reasonable, but unsuccessful, effort to market her residual

capacity.
     As to the employer's responsibility for claimant's medical

treatment between September 1992 and June 1994, the commission

found that Philip Morris told the claimant they would no longer

pay for her to see a doctor.   The commission found that the




                               - 6 -
claimant's testimony on this issue was unrebutted.   However, the

record reflects that, in Dr. Hanna's deposition, she denied

making this statement to the claimant.   Thus, the evidence to

support the factual finding was not unrebutted.   Additionally,

the commission found that the claimant's testimony that she was

not offered a panel of physicians was unrebutted.    Again, the

record shows that Dr. Hanna, based upon her review of claimant's

medical records, testified that the claimant had been offered a

panel of physicians by Philip Morris' nurse, and the claimant

chose Dr. Irby.   The employer urges this Court to reverse the

commission's decision based, in part, on the commission's

erroneous finding that certain facts were unrebutted.   Although

the basis for these factual findings may have been erroneous,

these facts have no relevance to the questions presented, namely

whether the claimant proved a change in condition or whether the

claimant abandoned her medical treatment.

                        NOVEMBER 1992 AWARD
     The employer contends that the Memorandum of Agreement,

Agreed Statement of Fact, and the November 1992 award precluded

the commission from reconsidering and deciding whether the

claimant was able to perform her pre-injury work.    The employer

argues that the claimant agreed and the award found that the

claimant could return to her pre-injury work in September 1992

and that, other than the claimant changing her mind, no medical

evidence proved a change of condition.   The employer also argues




                               - 7 -
that the prior award and underlying facts which found that

claimant could return to her pre-injury employment could not be

reviewed except on the grounds of fraud or mutual mistake.

     "The commission's approval of a memorandum of agreement is

binding, and 'an award of compensation entered upon such

agreement is as enforceable as an award entered in a contested

proceeding.'"   Butler v. City of Virginia Beach, 22 Va. App. 601,

604, 471 S.E.2d 830, 832 (1996) (quoting Hartford Fire Ins. Co.
v. Tucker, 3 Va. App. 116, 121, 348 S.E.2d 416, 419 (1986)); see

also Code §§ 65.2-701(A) and -706(A).    "Absent clear and

convincing evidence of fraud, misrepresentation, mutual mistake

or imposition, the commission has no authority to vacate an award

from which no party sought timely review."     Butler, 22 Va. App.

at 604, 471 S.E.2d at 832; accord K & L Trucking Co. v. Thurber,

1 Va. App. 213, 337 S.E.2d 299 (1985).

     However, pursuant to Code § 65.2-708, an award and whether a

claimant is disabled are subject to review upon the application

of either party or the commission alleging a change in condition.

"An award based on a change in condition is different from the

right to recover for the injury itself; a change in condition is

remedial and enlarges or diminishes a former award to meet the

circumstances of a particular case."     Bartholow Drywall Co. v.

Hill, 12 Va. App. 790, 793, 407 S.E.2d 1, 2-3 (1991).    The

statute defines a change in condition as "a change in physical

condition of the employee as well as any change in the conditions



                               - 8 -
under which compensation was awarded, suspended, or terminated

which would affect the right to, amount of, or duration of

compensation."   Code § 65.2-101.   "These changes include

'progression, deterioration, or aggravation of the compensable

condition . . . appearance of new or more serious features [and]

failure to recover within the time originally predicted . . . .'"

 Armstrong Furniture v. Elder, 4 Va. App. 238, 243, 356 S.E.2d

614, 616 (1987) (quoting 3 A. Larson, The Law of Workmen's
Compensation § 81.31(a) (1983)).      When a change in condition is

alleged and proven, the commission may make an award either

"ending, diminishing, or increasing the compensation previously

awarded . . . ."   Code § 65.2-708.

     In this case, the claimant requested a review of the

November 1992 award alleging a change in her condition.      Based on

the Memorandum of Agreement, the claimant's original award was

for an injury which was a contusion to the finger.     Thereafter,

she alleged a change in condition in that she was disabled due to

traumatic carpal tunnel syndrome that was caused by her injury.

Because the traumatic carpal tunnel syndrome developed as a "new

and more serious feature" which caused the claimant not "to

recover within the time originally predicted," the commission did

not err in considering whether the claimant was able to do her

pre-injury work due to traumatic carpal tunnel syndrome caused by

the accidental injury after the November 1992 award.

Furthermore, the commission's finding that the Agreed Statement



                               - 9 -
of Fact had no particular significance to whether the claimant

thereafter was disabled is essentially correct.   Based solely

upon the contusion to the finger, the statement indicates that

the claimant was able to return to her pre-injury work.      Neither

the Agreement, the Statement of Fact, nor the award contemplates

that the claimant's injury or its consequences was anything other

than a contusion to the finger.    However, the claimant's change

in condition application alleges, in effect, that when she

attempted to return to work, she was disabled due to the

traumatic carpal tunnel syndrome.

                       CHANGE IN CONDITION

     "When an employee files an application for reinstatement of

disability benefits, two questions arise:    (1) has there been a

change in the employee's capacity to work; (2) if so, is the

change due to a condition causally connected with the injury

originally compensated."   King's Market v. Porter, 227 Va. 478,

483, 317 S.E.2d 146, 148 (1984).    "General principles of

workman's compensation law provide that 'in an application for

review of any award on the ground of change in condition, the

burden is on the party alleging such change to prove his

allegations by a preponderance of the evidence.'"    Great Atl. &

Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101

(1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va.

App. 435, 438-39, 339 S.E.2d 570, 572 (1986)).    The employer

contends that the evidence presented by the claimant is



                              - 10 -
insufficient to meet her burden of proof because she did not show

that her condition had changed from the time of the initial award

and because all of the treating physicians, with the exception of

Dr. Bonner, who expressed no opinion on the issue, stated that

she could return to work.

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.   R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Based upon our review of the record, we hold that there is

sufficient credible evidence in the record to support the

claimant's change in condition application.
     After reviewing the records from Dr. Leibovic and examining

the claimant, Dr. Bonner diagnosed the claimant's condition as

traumatic carpal tunnel syndrome and opined that she has a 15%

permanent partial disability due to the injury that she received

on August 28, 1992.   Dr. Bonner's letter dated May 31, 1995

causally connects the claimant's carpal tunnel syndrome to her

injury by accident, which was deemed compensable in the November

1992 award.   Dr. Bonner expressed no opinion on the claimant's

ability to perform her pre-injury work.   However, he did put the

claimant on light duty restrictions which included no heavy

lifting and no repetitive activities with her hands.

     Drs. Irby, Leibovic, and Belle opined that the claimant

would, at some point, recover from the contusion to her finger

and be able to return to her pre-injury work.   However, being



                              - 11 -
able to return to work "is not the standard for determining

disability.   The threshold test of compensability is whether the

employee is 'able fully to perform the duties of his preinjury

employment.'"   Celanese Fibers Co. v. Johnson, 229 Va. 117, 120,

326 S.E.2d 687, 690 (1985).   The claimant testified that she did

try to return to her pre-injury work, but was unable to perform

the job.   The disability related to the traumatic carpal tunnel

syndrome, not to the contusion of the finger.    The commission

found that the claimant made a bona fide effort to return to

work, but due to the carpal tunnel syndrome she was unable to do

her job.   Although Drs. Irby, Leibovic, and Belle opined that she

could return to work, "[t]he fact that contrary evidence may be

found in the record is of no consequence if credible evidence

supports the commission's finding."    Manassas Ice & Fuel Co. v.

Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991).     The

claimant's testimony regarding her inability to do the work and

Dr. Bonner's diagnosis are credible evidence sufficient to

support the commission's decision that the claimant was partially

disabled as a result of traumatic carpal tunnel syndrome and that

a change occurred in the claimant's condition.
    PERMANENT PARTIAL DISABILITY AND TEMPORARY TOTAL BENEFITS

     The employer contends that the commission erred in finding

that the claimant suffered a permanent disability.   However, Dr.

Bonner's opinion that the claimant suffered from a 15% permanent

partial disability as a result of the carpal tunnel syndrome is




                              - 12 -
sufficient credible evidence to support the commission's finding

of permanent disability.   In view of the fact that the claimant

was partially disabled and discharged from her position, she is

entitled to temporary total disability benefits if she made a

reasonable effort to market her residual work capacity.     See

Washington Metro. Area Transit Auth. v. Harrison, 228 Va. 598,

601, 324 S.E.2d 654, 655-56 (1985); Pocahontas Fuel Co. v.

Barbour, 201 Va. 682, 684, 112 S.E.2d 904, 906 (1960); Pocahontas
Fuel Co. v. Agee, 201 Va. 678, 681, 112 S.E.2d 835, 838 (1960);

Island Creek Coal Co. v. Fletcher, 201 Va. 645, 648, 112 S.E.2d

833, 835 (1960).   The commission found that the claimant made a

reasonable effort to market her residual work capacity by

contacting more than 100 potential employers between January 1993

and June 1995 and by registering with the Virginia Employment

Commission.   On appeal, the employer does not challenge the

commission's finding of reasonable marketing, therefore, we

affirm the commission's decision on this issue.
                            ABANDONMENT

     The employer's final argument is that the claimant abandoned

her treating physician and sought unauthorized medical treatment,

which bars her from receiving disability benefits.   Based upon

the commission's findings that the claimant was not offered a

panel of physicians and that the employer refused to pay for the

claimant's medical treatment, the commission found that Dr.

Belle, the claimant's personal physician whom she saw after the




                              - 13 -
employer refused to pay for continued care by Dr. Leibovic, was

her treating physician.   The employer argues that these findings

were erroneous in that the commission purported to base its

decision on unrebutted evidence.   Regardless of the fact that the

commission erred in not considering the rebuttal evidence and

regardless of who was the claimant's treating physician, there is

no evidence that the claimant unjustifiably refused the medical

treatment of any doctor which would require a suspension of her

benefits.
       Code § 65.2-603(B) states in pertinent part:
            The unjustified refusal of the employee to
            accept such medical service . . . when
            provided by the employer shall bar the
            employee from further compensation until such
            refusal ceases and no compensation shall at
            any time be paid for the period of suspension
            unless, in the opinion of the Commission, the
            circumstances justified the refusal.


As we have previously stated, "[a]n unauthorized change in

physicians . . . is not necessarily equivalent to a refusal of

medical services under Code § [65.2-603(B)]."    Davis v. Brown &
Williamson Tobacco Co., 3 Va. App. 123, 127, 348 S.E.2d 420, 422

(1986).   In order to constitute a refusal of medical services,

there must be some evidence that the claimant has "refused to

undergo medical treatment or to participate in the plan of

treatment recommended by the treating physician."    Id.

       In this case, there was no course of treatment recommended

by any physician, regardless of who the actual treating physician

was.   The record shows that Dr. Leibovic instructed the claimant



                               - 14 -
to wear a splint and to avoid heavy lifting and repetitive

motions.    Dr. Belle prescribed a sling, Motrin for pain, and

Valium to help the claimant rest.   There is no evidence in the

record that the claimant failed to follow the advice of either of

doctor.    Therefore, we cannot say that the claimant refused

medical treatment which would require a suspension of her

benefits.    There was evidence that the claimant failed to keep

three follow-up appointments with Dr. Leibovic.   However, the

evidence shows that he had released her to return to work, that

these scheduled appointments were to follow her progress, and

were not part of a continuing course of treatment which she

abandoned.
     For the foregoing reasons, we affirm the decision of the

commission.

                                                          Affirmed.




                               - 15 -
