                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Russell and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              GENE FORBES ENTERPRISES
               d/b/a McDONALD’S OF TAZEWELL
              AND ARCH INSURANCE COMPANY
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 2320-14-2                                    JUDGE WESLEY G. RUSSELL, JR.
                                                                                     JUNE 9, 2015
              JANIS R. COOPER


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Steven T. Billy (Billy & Seli, P.C., on briefs), for appellants.

                               Mark T. Hurt (The Law Offices of Mark T. Hurt, on brief), for
                               appellee.


                     Appellants, Gene Forbes Enterprises d/b/a McDonald’s of Tazewell and Arch Insurance

              Company (employer), appeal the decision of the Workers’ Compensation Commission awarding

              benefits to appellee. On appeal, employer presents the following eleven assignments of error:

                               1. The [commission] erred, as a matter of law, in affirming the
                                  [d]eputy [c]ommissioner’s decision excluding and refusing to
                                  consider the January 19, 2014 questionnaire responses of
                                  Dr. James Vascik.

                               2. The [commission] erred, as a matter of law, in affirming the
                                  [d]eputy [c]ommissioner’s decision to admit [claimant’s]
                                  exhibits #3-5 into the evidence.

                               3. The [commission] erred, as a matter of law and fact, in finding
                                  that [claimant] suffered a compensable injury by accident that
                                  arose out of her employment on September 3, 2013.

                               4. The [commission] erred, as a matter of law and fact, in finding
                                  that [claimant] suffered a compensable injury by accident that


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                  occurred in the course of her employment on September 3,
                  2013.

              5. The [commission] erred, as a matter of law and fact, in finding
                 that [claimant] suffered a sudden mechanical or structural
                 change to her neck on September 3, 2013.

              6. The [commission] erred, as a matter of law and fact, in finding
                 that [claimant’s] medical treatment and alleged disability were
                 causally related to the alleged accident of September 3, 2014.

              7. The [commission] erred, as a matter of law, in awarding
                 [claimant] lifetime medical benefits for body parts for which
                 no claim had been filed.

              8. The [commission] erred, as a matter of law and fact, in
                 awarding [claimant] disability benefits for periods when she
                 did not have a legally sufficient statement of total disability and
                 in awarding [claimant] ongoing disability.

              9. The [commission] erred, as a matter of law, in failing to make a
                 ruling on [employer’s] asserted defense that [claimant] failed to
                 market her residual work capacity.

              10. The [commission] erred, as a matter of law, in failing to correct
                  the employer’s name in the proceedings from McDonald’s of
                  Tazewell d/b/a Gene Forbes Enterprises to its proper legal
                  name, Gene Forbes Enterprises d/b/a McDonald’s of
                  Tazewell.[1]

              11. The [employer] challenge[s] the legal conclusions of the
                  [commission] and the sufficiency of the evidence to support the
                  [c]ommission’s decision in this case.[2]

For the reasons stated below, we affirm the decision of the commission.




       1
         The commission never made a formal ruling on this issue; however, claimant, as she did
before the deputy commissioner, stated at oral argument that she had no objection to correcting
the apparent misnomer. Accordingly, in the style of the case, the employer will be referred to as
“Gene Forbes Enterprises d/b/a McDonald’s of Tazewell.”
       2
         Employer presents no argument for this assignment of error, and therefore, we will not
address it. Rule 5A:20(e). We note, however, that employer’s challenge to the commission’s
legal conclusions and the sufficiency of the evidence is addressed, at length, throughout the
remaining assignments of error.
                                                -2-
                                        BACKGROUND

       On appeals from the commission, “we review the evidence in the light most favorable to

the prevailing party[,]” here, claimant. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211,

212, 390 S.E.2d 788, 788 (1990). Moreover, “[f]actual findings of the commission will not be

disturbed on appeal unless plainly wrong or without credible evidence to support them.” Ga.

Pac. Corp. v. Dancy, 17 Va. App. 128, 135, 435 S.E.2d 898, 902 (1993) (citation omitted).

       So viewed, the record establishes that claimant is a former employee of Gene Forbes

Enterprises, a business that operated several McDonald’s restaurants, including one in both

Bluefield and Tazewell, Virginia. Claimant, a forty-three-year-old female, worked for the

company at various store locations for 23 years. In 2008, she was serving as store manager at the

Bluefield, Virginia store. In June 2013, the business decided to close the Bluefield location for

renovations, and claimant was transferred to Tazewell, where she remained a manager, but was

subject to the direction of that location’s store manager. Claimant admits she was displeased by

her reassignment. Her duties in these positions, which usually entailed nine-hour shifts, included

serving customers, frequent cleaning of all parts of the store, regular loading and unloading of

supply trucks, and lifting of equipment and product weighing up to 40 pounds.

       On October 8, 2013, claimant filed with the Virginia Workers’ Compensation

Commission a claim for benefits for a neck injury she claimed to have sustained while working

at the Tazewell McDonald’s drive-thru window on September 3, 2013.3 According to claimant,

on the date of her injury, she was manning the drive-thru by herself when, in fulfilling an order, a

bag of french fries slipped from her hands. When she impulsively bent over quickly to catch the

bag, claimant “heard and felt a tear” down her neck and shoulder and felt a shooting pain that


       3
          Claimant also filed a claim for a back injury, but that claim was withdrawn and is not a
part of this appeal.
                                                -3-
caused her to cry. She reported the injury to her supervisor the same day and informed her that

the pain would not allow her to work late. Claimant acknowledges that she had issues with neck

and back problems before this incident, however she had no history of absences from work based

on those issues and stated that the previous pain was different in that it was more sporadic and

felt more like a tingling or numbing sensation rather than pain.

       Hoping that the injury was minor and that the pain would be temporary, claimant did not

immediately seek medical treatment. Not having recovered after two days, however, she sought

treatment from a family nurse practitioner, Ms. Walker, on September 5, 2013. The nurse

practitioner’s records note that claimant was working when she “felt a pop in her posterior left

neck followed by a burning like pain [in] the muscle with no radiation” and that “[s]ince [the

incident claimant] has continued her activities and work to the point that both the upper back and

neck pain have become worse and unbearable causing her not to be able to walk, bend, stand,

breathe, lift, sleep, work or perform ADL’s normally.” Nurse Practitioner Walker instructed

claimant to refrain from work until her follow-up appointment on September 9, 2013.

       After claimant’s follow-up appointment, claimant still experienced pain on the left side of

her upper trapezius and also in the left scapula trapezius area.4 During a subsequent visit, she

cried because of the pain and the inability to continue providing for her family. Based on

claimant’s irregular gait, bent-over posture, and continued negative results on the straight leg

raise exam, Nurse Practitioner Walker referred claimant for a cervical MRI, which was

conducted on September 20, 2013. Based on the MRI results, claimant was then referred to a




       4
        The trapezius is “[a] flat, triangular muscle covering the posterior surface of the neck
and shoulder. It raises, retracts or lowers the scapula, extends the head, and is controlled by the
accessory nerves.” Taber’s Cyclopedic Medical Dictionary 2370 (22d ed. 2013).

                                                -4-
neurosurgeon, Dr. James M. Vascik. Claimant also was referred to physical therapy, and she

was advised to remain out of work.

       Dr. Vascik examined claimant on October 1, 2013. Notes from that visit reveal that

claimant came to the office “bent over at the waist with her head cocked over to the right.”

According to Dr. Vascik’s analysis of the recent MRIs, claimant had bulging disks from C3-C7,

but those disks were not touching her spinal cord or the nerve roots. Dr. Vascik concluded, “I do

not see a surgical problem on any of her studies. I don’t see that an ESI would be of value as I

believe her problem is musculoskeletal in nature, not from a nerve root compression problem.”

       The following day, claimant returned to Nurse Practitioner Walker, where she

complained of continuing and exasperated pain due to the car ride to the neurosurgeon and the

physical therapy. Claimant was then referred to an orthopaedic physician and, a short time

thereafter, another neurosurgeon. When claimant attempted to make an appointment with the

orthopaedist, she was informed that he did not treat neck and back injuries, and she did not see

the neurosurgeon, despite arriving for her appointment, because she could not afford the co-pay.

       Claimant also started seeing a pain specialist, Dr. Marc Swanson, whose office claimant

first visited on October 30, 2013. Claimant’s continued pain, which she described as tightness in

her left neck and shoulder muscles, caused her to continue visiting Dr. Swanson, despite not

being able to afford much treatment. She visited Dr. Swanson on a monthly basis and received

several brachial plexis block injections to alleviate her muscle spasms. This treatment afforded

her temporary pain relief of three to five days. Dr. Swanson found that although claimant may

have had a pre-existing injury, the September 3, 2013 incident “escalated her pain and added to

the functional impairment over and above and beyond what she experienced up until the injury,

to the point of injury[,]” and he linked her present condition to the event to a reasonable degree

of medical certainty.
                                                -5-
       In January 2014, Dr. Swanson noted that claimant could not safely or reliably return to

work and advised that she remain out of work until the end of February. Dr. Swanson

commented that, while claimant was demonstrating some improvement, she would not be

employable “when she struggles with neck and arm pain, radicular symptoms, symptoms that

really limit her ability to function during the day.” Claimant testified that she could no longer

engage in hobbies such as hunting and fishing and could not perform routine tasks, such as house

and yard work, grocery shopping, or extended driving without straining her injury. Dr. Swanson

ultimately concluded that claimant “is not currently able to return to work.”

       After claimant filed her claim for benefits, a hearing was scheduled before the deputy

commissioner for January 21, 2014. After granting two continuances based on claimant’s

motions, the matter was reset for May 13, 2014. Claimant filed her designation of medical

records on May 9, 2014. Employer filed its designation of medical records on the evening of

May 12, 2014, the day before the rescheduled hearing. The designation included questionnaire

responses that employer previously had received from Dr. Vascik on or about January 19, 2014.

Arguing that employer’s designation failed to comply with Rule 4.2, claimant moved to strike

the questionnaire responses. In response, employer filed a motion to continue and an objection

to the motion to strike. The deputy commissioner denied employer’s motions and excluded the

questionnaire. After the evidentiary hearing, employer unsuccessfully twice sought

reconsideration of this issue.

       During the proceeding on the merits of the case, claimant offered as an exhibit three text

messages of the claimant discussing her injuries with others. Employer objected to their

consideration on hearsay grounds, but the deputy commissioner accepted them, noting, “I will

allow them for whatever worth, evidentiary weight I think they deserve.” During the hearing, the

deputy commissioner realized that the claim had been filed with an incorrect name of the
                                                -6-
employer, and counsel agreed to amend the claim to reflect the proper party. The deputy

commissioner also noted a potential further discrepancy in claimant’s claim: in her pre-hearing

statement she had asserted both a neck and left shoulder injury, but her formal claim included

only the neck injury. Claimant sought to amend her claim, but the deputy commissioner denied

her request, and the claimant proceeded on her neck claim only. After the evidentiary hearing,

the record was held open to receive a de bene esse deposition of Dr. Swanson, who failed to

appear at the hearing despite having been served a subpoena.

        On June 19, 2014, the deputy commissioner issued an opinion finding that claimant had

suffered a compensable injury of her neck. Specifically, the deputy commissioner determined

that claimant sustained an injury by accident to her neck on September 3, 2013, arising out of

and in the course of her employment. The deputy commissioner found the employer responsible

for the cost of her treatment with Nurse Practitioner Walker, Dr. Vascik, and the other

neurosurgeon. The treatment by Dr. Swanson was deemed reasonable but unauthorized. The

deputy commissioner then awarded claimant compensation of $635.64 per week temporary total

disability for the periods of September 3, 2013 through November 15, 2013 and January 23,

2014 until otherwise modified. Employer timely filed a request for review of the deputy

commissioner’s opinion by the full commission, raising twenty assignments of error. The full

commission issued an opinion on November 24, 2014, affirming the ruling of the deputy

commissioner. This appeal followed.

                                             ANALYSIS

        At the outset, we note that the decisions of the commission are “presumed to be

correct . . . [and that if] this [C]ourt determines that the evidence is sufficient to support the

finding of the . . . [c]ommission, the order of the [c]ommission will be affirmed.” Humphries v.

Newport News Shipbuilding & Dry Dock Co., 183 Va. 466, 476, 32 S.E.2d 689, 694 (1945).
                                                  -7-
Having disposed of employer’s tenth and eleventh assignments of error above, we turn to the

remaining nine assignments of error.5

                       Exclusion of Dr. Vascik’s Questionnaire Responses

       Employer contends that the exclusion of Dr. Vascik’s questionnaire constituted an abuse

of discretion because, under Code § 65.2-902 and Rule 4.2 of the Rules of the Commission, such

a document constitutes a “required report” and because Rule 2.2(B)(4) provides that designated

records “will be admitted into evidence.” Employer further argues that these documents “are

automatically part of the hearing record,” and therefore the deputy commissioner was not free to

exclude the questionnaire and the commission should have considered it. Because this argument

amounts to a challenge to the commission’s interpretation of its own rules, we review the

commission’s action deferentially and will only reverse the commission if its action is arbitrary

and capricious. Jenkins v. Webb, 52 Va. App. 206, 211, 662 S.E.2d 633, 635 (2008) (citation

omitted).

       Although employer’s recitation of these provisions may be correct, the cited Rules cannot

be read in isolation. Rather, they must be read in context and in relation to the other Rules.

Commission Rule 1.12 expressly authorizes the commission “to enforce its rules and the

provisions of the Workers’ Compensation Act . . . upon its own motion . . . [by excluding]

evidence from the record . . . .” This power is “[i]n addition to the statutory authority of the

[c]ommission to levy fines, to assess attorney fees and punish contempt . . . .” Accordingly,


       5
         Many of employer’s assignments of error share a common theme – that employer
introduced substantial evidence that contradicted claimant’s version of events and her ultimate
position in the case. Much of employer’s brief catalogues inconsistent and contradictory
statements allegedly made by claimant and expert opinions that conflict with the opinions of the
health care providers relied upon by claimant. This effort is misguided in that it misapprehends
our role. It is the commission, not this Court, that makes factual and credibility determinations.
Even if we were to find employer’s list of inconsistencies persuasive, we nevertheless must
affirm the commission’s factual conclusions if there is evidence in the record to support them.
                                                 -8-
although Rule 4.2 provides that the civil penalty established by Code § 65.2-902 applies to

medical records, such penalty is not the sole means by which the commission can enforce Rule

4.2’s requirement that “[e]ach party shall promptly provide the other parties with copies of any

medical records they receive as they receive them.” Further, nothing in Rule 1.12 limits the

commission’s power to exclude evidence after it has become part of the record. We, therefore,

conclude that the commission’s discretion to exclude evidence under Rule 1.2 is not curtailed by

Rule 4.2 or Rule 2.2(B)(4).

       Here, employer sent Dr. Vascik a questionnaire on January 15, 2014. Prior to sending it,

employer noted that, in reserving “the right to obtain questionnaire responses from the claimant’s

treating physicians,” it “will provide copies of any such reports as soon as they are received,” as

required by Rule 4.2. Dr. Vascik completed, signed, and returned the questionnaire to employer

on January 19, 2014, but employer did not disclose the questionnaire until 7:18 p.m. on May 12,

2014, the eve of the scheduled hearing, and almost four months after receiving the document

from the physician. The deputy commissioner found that this delay violated Rule 4.2’s

requirement to “promptly provide” copies of medical records as they are received. The

commission adopted the deputy commissioner’s resolution of the issue.

       As we previously have stated, “Rule 1.12 sets forth methods by which the commission

may enforce the Act and its rules, expressly allowing the commission in the exercise of its

discretion to act sua sponte to exclude evidence from the record.” Jenkins, 52 Va. App. at 211,

662 S.E.2d at 635. Accordingly, because the commission determined there had been a violation

of its rules, and because generally, “[t]he commission, in order to do full and complete justice in

each case, must be able to protect itself and parties from discovery abuse[,]” Jeff Coal, Inc. v.




                                                -9-
Phillips, 16 Va. App. 271, 278, 430 S.E.2d 712, 717 (1993), we find the commission did not

abuse its discretion in excluding the questionnaire responses of Dr. Vascik.6

                       Admission into Evidence of Claimant’s Exhibits 3-5

       Claimant’s exhibits 3-5 were reproductions of text messages that claimant either sent or

received after the injury. Claimant sought to introduce the reproductions in her rebuttal case to

demonstrate prior consistent statements in an effort to counter testimony adduced in employer’s

case that suggested she had made statements inconsistent with her hearing testimony.

       Employer correctly notes that the commission properly may receive hearsay evidence in

determining the substantial rights of the parties. See Rule 2.2, Rules of the Virginia Workers’

Compensation Commission. This Court has repeated that rule, explaining that “the commission

is not bound by common law rules of evidence, but may adopt whatever procedures it sees fit so

long as they ‘protect the substantial rights of the parties.’” Ceres Marine Terminals v.

Armstrong, 59 Va. App. 694, 702, 722 S.E.2d 301, 305 (2012) (quoting Rios v. Ryan, Inc. Cent.,

35 Va. App. 40, 44-45, 542 S.E.2d 790, 791-92 (2001)).



       6
          In making its argument, employer also compares the deputy commissioner’s exclusion
of the questionnaire to his leaving the record open to allow for the deposition of Dr. Swanson,
who failed to appear at the hearing. Unlike the late filing of the questionnaire, however, the
nonappearance of Dr. Swanson was not a failure attributable to a party. Employer further asserts
that the deputy commissioner acted arbitrarily when he chose to admit Dr. Swanson’s April 24,
2014 letter opinion that was not filed by claimant until four days prior to the hearing. This
contention is meritless, because employer failed to contemporaneously object to the admission of
Dr. Swanson’s report and, moreover, the deputy commissioner clearly had the discretion to treat
a document that was filed several days before the hearing and no more than two weeks after its
creation differently from a record that had been in employer’s possession for over three months
yet filed only on the eve of the hearing. Employer’s reliance on Mason v. Danis Enter.,
No. 2370-93-4, 1995 Va. App. LEXIS 358 (Va. Ct. App. Apr. 11, 1995), is misplaced. It is
unpersuasive here because it is easily distinguishable in that, unlike the extent of the sanction
imposed in Mason, the deputy commissioner here excluded only one document. As evidenced
by the ten other assignments of error and the evidence adduced below, employer retained and
exercised the ability to put on a substantial defense without the responses to the questionnaire.

                                               - 10 -
       Employer asserts that the commission abused its discretion in admitting the hearsay in

this case because (1) the claimant failed to lay a proper foundation; (2) the text messages were

not “reliable” hearsay; (3) the reproduced images violated the best evidence rule; and

(4) allowing the admission of the text messages failed to protect the substantial rights of the

employer. Employer reasons that these errors occurred because claimant submitted

“hand-picked” messages that were taken out of context. Employer cites no authority, and we are

not aware of any, that restricts the admissibility of hearsay under these circumstances.

       “Rule 5A:20(e) requires that an appellant’s opening brief contain ‘[t]he principles of law,

the argument, and the authorities relating to each question presented.’ Unsupported assertions of

error ‘do not merit appellate consideration.’” Jones v. Commonwealth, 51 Va. App. 730, 734,

660 S.E.2d 343, 345 (2008) (quoting Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d

237, 239 (1992)). “The Supreme Court concluded that ‘when a party’s “failure to strictly adhere

to the requirements of Rule 5A:20(e)” is significant, “the Court of Appeals may . . . treat a

question presented [now assignment of error] as waived.”’” Atkins v. Commonwealth, 57

Va. App. 2, 20, 698 S.E.2d 249, 258 (2010) (quoting Parks v. Parks, 52 Va. App. 663, 664, 666

S.E.2d 547, 548 (2008)).

       When a party believes that the commission erred, it is that party’s duty to present that

error to this Court with legal authority to support its contention. See Fadness v. Fadness, 52

Va. App. 833, 851, 667 S.E.2d 857, 866 (2008). Because employer provides no supporting legal

argument or authority to support its position that claimant’s hearsay evidence was received in




                                               - 11 -
error, and because we find that this omission is significant, we conclude that this argument is

waived pursuant to Rule 5A:20(e).7

                              Injury Arising out of the Employment

                    Whether an injury arises out of . . . employment involves a
                mixed question of law and fact, which we review de novo on
                appeal. Accordingly, although we are bound by the commission’s
                underlying factual findings if those findings are supported by
                credible evidence, . . . we review de novo the commission’s
                ultimate determination as to whether the injury arose out of the
                claimant’s employment.

Snyder v. City of Richmond Police Dep’t, 62 Va. App. 405, 411-12, 748 S.E.2d 650, 653-54

(2013) (internal quotation marks and citations omitted).

        Here, the commission credited claimant’s version of the incident. Thus, the question

before us is whether her description of the accident meets the “arising out of” standard. We find

that it does.

        Virginia has adopted “the ‘actual risk’ test” to determine whether an injury arises out of

employment. Simms v. Ruby Tuesday, Inc., 281 Va. 114, 122, 704 S.E.2d 359, 363 (2011).

“Under the actual risk test, an ‘injury comes within the Act only if there is a causal connection

between the employee’s injury and the conditions under which the employer requires the work to

be done.’” Id. (quoting Hilton v. Martin, 275 Va. 176, 180, 654 S.E.2d 572, 574 (2008)). Thus,

“[i]n considering the ‘arising out of’ prong” of Code § 65.2-101, Virginia appellate courts “do


        7
          Although employer cites neither supporting case authority nor the Virginia Rules of
Evidence, it did use the phrase “best evidence rule” on brief. Assuming without deciding that
such a reference is sufficient to meet the requirements of Rule 5A:20(e), the best evidence rule
did not bar admission of the photographs of the text messages. Although text messages are
subject to the best evidence rule, Dalton v. Commonwealth, 64 Va. App. 512, 523, 769 S.E.2d
698, 704 (2015), the photographs/screen shots of the text messages admitted here constitute
“duplicate originals.” Because they were “duplicate originals,” the best evidence rule did not
prohibit their admission into evidence. Charles E. Friend & Kent Sinclair, The Law of Evidence
in Virginia § 18-4, at 1195 (7th ed. 2012).

                                               - 12 -
not apply the ‘positional risk’ test, whereby simply sustaining an injury at work is sufficient to

establish compensability.” Hilton, 275 Va. at 180, 654 S.E.2d at 574. Ultimately, “if the injury

can be seen to have followed as a natural incident of the work to have been contemplated by a

reasonable person familiar with the whole situation as a result of the exposure occasioned by the

nature of employment, then it arises out of the employment.” Simms, 281 Va. at 122, 704 S.E.2d

at 363 (internal quotation marks and citation omitted).

       Employer, citing Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 382 S.E.2d

305 (1989), argues that “the simple act of bending over, absent any unusual or awkward

movement” does not provide “a sufficient nexus to the employment to meet the ‘arising out of’

standard.” The record, however, reveals more than mere bending.

       The evidence establishes that, while working at the drive-thru window, claimant was

holding a bag of food in one hand and was in the act of placing a container of french fries in the

bag when the bag slipped and began to fall. To prevent the food from falling to the floor, which

presumably would have rendered it unfit to provide to customers, claimant reached with the

opposite hand across her body to catch the falling bag. Thus, from the record, the commission

reasonably could (and did) determine that the injury was caused by not just bending, but by the

need to bend, jerk, and twist, and to do so quickly.

       The combination of these motions was done to advance employer’s business – timely

serving the drive-thru customers without throwing away the fallen food and preparing new food.

Although, as employer asserts, people routinely bend in their everyday activities, the

combination of quickly bending, twisting, and jerking as necessitated by the job-related

circumstances is sufficient to remove the actions from a “risk of the neighborhood” to “a natural

incident of the work to have been contemplated by a reasonable person familiar with the whole

situation as a result of the exposure occasioned by the nature of employment . . . .” Simms, 281
                                               - 13 -
Va. at 122, 704 S.E.2d at 363 (internal quotation marks and citation omitted). Accordingly, the

record establishes that the injury by accident arose out of claimant’s employment.

                       Injury Occurring in the Course of Her Employment

       Whether an injury occurs in the course of employment is a mixed question of law and

fact that we review de novo. Snyder, 62 Va. App. at 411, 748 S.E.2d at 653. In reviewing such

questions, we are bound by the underlying factual findings of the commission if those findings

are supported by credible evidence. Id. Questions of causation are questions of fact. Ingersoll-

Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).

       An injury by accident occurs in the “course of the employment” when “it happens within

the period of employment, at a place where the employee may reasonably be expected to be, and

while she is reasonably fulfilling the duties of her employment . . . .” R & T Investments v.

Johns, 228 Va. 249, 252, 321 S.E.2d 287, 289 (1984) (citation omitted).

       Here, the commission found, based on evidence in the record, that claimant’s injury was

caused when she quickly moved to catch a bag of french fries. With that underlying fact

established, claimant’s injury occurred while she was working for the employer at the

restaurant’s drive-thru window and was injured in the act of bagging food to be provided to

employer’s customers. From the record, she was where her job required her to be and was

performing the normal tasks of the employment. Accordingly, the record establishes that the

injury by accident occurred in the course of her employment with employer.

                            Sudden Mechanical or Structural Change

       Whether a claimant suffered a sudden mechanical or structural change is a question of

fact. Accordingly, we must uphold the commission’s determination if there is credible evidence

in the record to support it. VFP, Inc. v. Shepherd, 39 Va. App. 289, 292, 572 S.E.2d 510, 511



                                              - 14 -
(2002). Additionally, we grant the commission all reasonable inferences that can be drawn from

the evidence. Id. at 292, 572 S.E.2d at 512.

       Here, there was evidence that the commission found credible to support a conclusion that

claimant suffered a sudden mechanical or structural change to her neck when working for the

employer on September 3, 2013. Claimant testified that she heard and felt a tearing in her neck

when she moved to catch the bag of french fries. We previously have held that a claimant

testifying that he heard or felt a tearing or popping is credible evidence that supports a finding of

a sudden mechanical or structural change. See, e.g., Corning, Inc. v. Testerman, 25 Va. App.

332, 340, 488 S.E.2d 642, 646 (1997) (finding that claimant’s testimony that he “suffered a

sudden ‘pull’ and ‘pop’ in his back while he was performing work-related duties . . .” provided

substantial evidence of an injury by accident even if the claimant had pre-existing conditions that

affected the area of claimed injury); National Fruit Prod. Co. v. Winters, No. 0704-97-3, 1997

Va. App. LEXIS 529, at *3 (Va. Ct. App. Aug. 5, 1997) (“[Claimant’s] testimony [regarding

feeling a pain and a ‘popping’ in her back] . . . provides credible evidence to support the

commission’s finding that she proved an identifiable incident resulting in a sudden mechanical

change in her body . . . .”); Myerchin v. Heart Corp., No. 0617-97-4, 1997 Va. App. LEXIS 556,

at *4 (Va. Ct. App. Aug. 26, 1997) (“Claimant’s testimony [regarding experiencing an ache and

a pop] . . . provides credible evidence to support the commission’s finding that claimant proved

an identifiable incident resulting in a sudden mechanical change in his body.”).8

       In addition to hearing and feeling the tearing, claimant testified that she immediately felt

pain and that the pain was sufficient to cause her to cry. She reported the incident to her


       8
         Unpublished opinions of this Court, while having no precedential value, are
nevertheless persuasive authority. Otey v. Commonwealth, 61 Va. App. 346, 351 n.3, 735
S.E.2d 255, 258 n.3 (2012).

                                                - 15 -
supervisor and was unable to complete her shift at work. All of these factors support a finding of

a sudden mechanical or structural change.

        The record also contains medical evidence to support the commission’s finding.9 Doctors

Swanson, Ofsa,10 and Vascik,11 along with Nurse Practitioner Walker, each provided evidence

that claimant suffered a musculoskeletal injury of some degree on September 3, 2013. This

conclusion is also supported by the IME report of Dr. Wilson offered by employer. Although

clearly of the opinion that no compensable injury occurred on September 3, 2013, Dr. Wilson, in

answering a question about what, if any, injury claimant sustained on September 3, 2013, stated

that his review led to a conclusion that claimant suffered “at most[] a . . . cervical strain . . . .”

The commission, as factfinder, was free to reject the majority of Dr. Wilson’s opinion but accept

his statement that the evidence could support a conclusion that claimant suffered a muscle strain

on September 3, 2013. See Bazemore v. Commonwealth, 42 Va. App. 203, 213, 590 S.E.2d 602,

607 (2004) (A factfinder is “free to believe or disbelieve, in part or in whole, the testimony of

any witness.” (citation omitted)). Although there was conflicting medical evidence, the medical

evidence, coupled with claimant’s testimony, provided a sufficient basis for the commission to

conclude that claimant suffered a sudden mechanical or structural change to her neck on

September 3, 2013.


        9
        We note that while there was medical evidence to support the commission’s decision, it
was unnecessary because the commission could have reached this conclusion based on the
testimony of the claimant alone. Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d
152, 154 (1996).
        10
             Dr. Ofsa is the physician who oversaw Nurse Practitioner Walker.
        11
          In treating claimant, Dr. Vascik initially concluded that she had a musculoskeletal
strain. Dr. Vascik’s January 19, 2014 answers to the questionnaire sent to him by claimant’s
counsel were not evidence before the commission and are only before us to the extent necessary
to address employer’s allegation that the commission abused its discretion in striking it from
employer’s designation and refusing to admit it into evidence.
                                                - 16 -
           Causal Link Between the Injury and the Resulting Medical Treatment/Disability

       Employer challenges the commission’s conclusion that the medical treatments for which

she has received (and will continue to receive) benefits and the disability benefits she has been

awarded are causally related to the September 3, 2013 injury by accident. As noted above,

questions of causation are questions of fact. Musick, 7 Va. App. at 688, 376 S.E.2d at 817.

Accordingly, we must uphold the commission’s findings regarding causation if there is credible

evidence to support them. Snyder, 62 Va. App. at 411, 748 S.E.2d at 653.

       It is undisputed that claimant offered medical evidence to support a causal link between

her injury and her resulting medical treatment and disability. Evidence offered through

Dr. Swanson linked claimant’s injury to the care received. Although employer has offered

reasons that could cause a factfinder to discount the opinions of Dr. Swanson, the commission

was free to weigh this evidence as it deemed appropriate. Because there is evidence in the record

to establish a causal link between claimant’s injury and the resulting treatment/disability that the

commission found credible, we affirm the commission’s ruling as to causation.

                 Alleged Award of Medical Benefits for a Non-Claimed Body Part

       Employer asserts that the deputy commissioner awarded lifetime medical benefits to

claimant for body parts other than the neck – the sole body part that was subject to the

proceeding before the deputy commissioner. Employer then asserts that the commission “just

affirmed the ruling without clarification.” The record bears out neither assertion.

       In its opinion affirming the award of benefits, the commission explicitly addressed

employer’s argument. Specifically, the commission rejected employer’s premise, noting as

follows:

                 The [d]eputy [c]ommissioner entered an award of medical benefits
                 for the neck only. He did not, as the defendants argue, award
                 benefits for the shoulder. Rather, based upon Dr. Swanson’s
                                               - 17 -
               opinion, the [d]eputy [c]ommissioner found the muscle spasms in
               the neck were producing shoulder symptoms, and the neck injury
               encompassed an injury to the trapezius muscle, which produced
               symptoms in the neck and shoulder. We agree with this reasoning.

       Because the commission’s order expressly states that medical benefits are being awarded

only for the neck injury while employer’s assignment of error asserts something different, there

is a question as to whether this issue is properly before us on appeal. We previously have held

that this Court “cannot consider alleged error on a ruling the commission never made.”

Montalbano v. Richmond Ford, LLC, 57 Va. App. 235, 249 n.7, 701 S.E.2d 72, 79 n.7 (2010).

Assuming without deciding that, despite the discrepancy between the commission’s opinion and

the assignment of error presented, the issue is properly before us, we find employer’s argument

lacks merit.

       As the commission summarized, evidence the commission found credible supported the

conclusion that claimant suffered a neck injury and that the neck injury caused sequelae in the

neck and shoulder. Accordingly, it was appropriate for the commission to award medical

benefits to treat the neck injury and the issues associated with it. Knott v. Va. Beach Mariners,

Inc., No. 0634-09-1, 2009 Va. App. LEXIS 535 (Va. Ct. App. Dec. 8, 2009).

       Employer argues that the injury specifically was to the trapezius muscle, and therefore,

claimant was required to identify the trapezius muscle in her application for benefits as opposed

to identifying her neck as the area of injury. We disagree.

       It is undisputed that the trapezius is a muscle that extends from the neck to the shoulder.

As such, it is fairly viewed as part of the neck. There is simply no support for employer’s

argument that claimant had to identify the specific muscle in her application as opposed to a

generic description of the part of the body for which benefits are claimed. Corporate Res. Mgmt.

v. Southers, 51 Va. App. 118, 131, 655 S.E.2d 34, 40 (2008) (en banc) (In filing an application, a

                                              - 18 -
claimant is not “expected to know precisely where her scapular region ended and her cervical

region began.”). Accordingly, based on the commission’s factual findings, the award of benefits

was an award related to the neck, and therefore, appropriate.

                                     Period of Total Disability

       “[A] party seeking [workers’] compensation bears the burden of proving his disability

and the periods of that disability.” Marshall Erdman & Assocs. v. Loehr, 24 Va. App. 670, 679,

485 S.E.2d 145, 149-50 (1997). The issue of claimant’s continued disability raises a question of

fact. Hoffman v. Carter, 50 Va. App. 199, 216, 648 S.E.2d 318, 327 (2007). Accordingly, the

commission’s findings related to the duration of disability are binding upon this Court so long as

they are supported by credible evidence. Ga. Pac. Corp., 17 Va. App. at 135, 435 S.E.2d at 902.

Moreover, “[t]he fact that contrary evidence may appear in the record ‘is of no consequence if

there is credible evidence to support the commission’s finding.’” Dollar Gen. Store v. Cridlin,

22 Va. App. 171, 177, 468 S.E.2d 152, 155 (1996) (quoting Wagner Enters., Inc. v. Brooks, 12

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

       We find there is credible evidence to support the commission’s award. For the period

beginning September 3, 2013, and ending November 15, 2013, the commission was entitled to

rely on Nurse Practitioner Walker’s reports and the return to work slips. For the period

beginning January 23, 2014 to the present and continuing, the finding of total disability was

supported by Dr. Swanson’s testimony regarding claimant’s inability to perform daily tasks and

perform the required tasks of her job safely.12 Consequently, the commission’s finding of total




       12
          Employer argues that Dr. Swanson’s diagnosis of total disability is entirely based on
claimant’s risk of injury. While re-injury alone is not grounds for a finding of total disability,
Dr. Swanson testified to a variety of other concerns, including claimant’s inability to perform
routine tasks.
                                               - 19 -
disability is supported by credible evidence and is, therefore, “conclusive and binding upon this

Court.” United Airlines, Inc. v. Hayes, 58 Va. App. 220, 237, 708 S.E.2d 418, 427 (2011).

       In assigning error, employer primarily argues that the opinions of Dr. Swanson are

incredible. Determinations of credibility, however, are reserved to the commission. Goodyear

Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). On appeal to

this Court, we are not permitted to “judge the credibility of witnesses or weigh the evidence

. . . .” Celanese Fibers Co. v. Johnson, 229 Va. 117, 121, 326 S.E.2d 687, 690 (1985).

Accordingly, we affirm the finding of the commission.

                              Marketing of Residual Work Capacity

       Employer argues that the commission erred in not ruling on claimant’s duty to market her

residual work capacity. Because the commission found her totally disabled, however, claimant

was not required to prove that she made a reasonable effort to market her residual work capacity

in order to receive disability benefits. See Starbucks Coffee Co. v. Shy, 61 Va. App. 229, 246,

734 S.E.2d 683, 692 (2012) (“[A] claimant under an award for permanent or temporary total

disability is under no obligation to market her remaining work capacity.” (citing Ga. Pac. Corp.,

17 Va. App. at 134, 435 S.E.2d at 901-02)). Accordingly, we find no error by the commission

with respect to this assignment of error.

                                            CONCLUSION

       For the foregoing reasons, the decision of the Virginia Workers’ Compensation

Commission is affirmed.

                                                                                         Affirmed.




                                               - 20 -
