                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia


EUGENIA L. MAWSON
                                           MEMORANDUM OPINION* BY
v.   Record No. 0873-02-2                JUDGE JAMES W. BENTON, JR.
                                               APRIL 22, 2003
RAPPAHANNOCK GENERAL HOSPITAL AND
 RECIPROCAL OF AMERICA


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Robert L. Flax (Flax & Stout, on briefs), for
            appellant.

            Karen A. Gould (Angela C. Fleming; Crews &
            Hancock, P.L.C., on brief), for appellees.


     The Workers' Compensation Commission denied Eugenia L.

Mawson's change-in-condition application for permanent and total

incapacity benefits.    Mawson contends the commission erred in

ruling (1) that she was not disabled by her work injury, (2)

that she failed to prove a quantifiable loss of capacity of both

legs, and (3) that she did not suffer total and permanent

disability from her work injury.    For the reasons that follow,

we affirm the commission's denial of Mawson's claim for

benefits.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                               I.

     On February 19, 1988, Eugenia L. Mawson, a registered nurse

employed by Rappahannock General Hospital, sustained a back

injury while assisting a patient.     The commission found that

Mawson suffered an acute lumbosacral strain and that her

physicians diagnosed post-traumatic radicular neuropathy.     The

commission entered an award for the payment of temporary total

disability benefits beginning February 26, 1988.

     Following a 1996 hearing on the Hospital's

change-in-condition application, the deputy commissioner found

that "Mawson remains partially disabled as a result of the back

pain caused by the work injury."    The deputy commissioner also

found "that Mawson is additionally disabled due to her mental

condition, specifically her multiple personality disorder," but

that "[i]t is questionable whether this mental disability was

caused by the work injury."   The deputy commissioner did not

further address the issue of her mental disability because of

the finding that "Mawson was partially disabled due to her back

condition."   On review, the commission affirmed the deputy

commissioner's finding that Mawson continued to be partially

disabled, but the commission also found "that whereas [Mawson]

has experienced anxiety and depression related to the chronic

[back] pain, her main psychiatric condition is her multiple

personality disorder, which is not related to the occupational

injury."
                              - 2 -
     The record establishes that Mawson received compensation

for various periods of temporary total and temporary partial

disability for her back injury through September 18, 1997.    In

1999, however, the commission denied Mawson's request for a

panel of psychiatrists.   The commission found that "there is no

convincing explanation for the necessity of pain management

. . . [because, the evidence] failed to link [Mawson's]

psychiatric problems to the work-related injury."   The

commission further found that "[n]o established authorized

treating physician has proposed or supported the request for

pain management."

     In 2001, Mawson filed an application for change in

condition, which alleged permanent and total disability due to

the loss of use of her legs.   The commission denied Mawson's

application.   This appeal arises from that decision.

                               II.

     Our review of the commission's decision is governed by well

established principles.

             "On appeal, we view the evidence in the
          light most favorable to . . . the party
          prevailing before the commission." Great
          Eastern Resort Corp. v. Gordon, 31 Va. App.
          608, 610, 525 S.E.2d 55, 56 (2000). "A
          claimant must prove [her] case by a
          preponderance of the evidence." Bergmann v.
          L & W Drywall, 222 Va. 30, 32, 278 S.E.2d
          801, 802 (1981); see Marketing Profiles,
          Inc. v. Hill, 17 Va. App. 431, 433, 437
          S.E.2d 727, 729 (1993) (en banc).
          Furthermore, "[d]ecisions of the commission
          as to questions of fact, if supported by
                             - 3 -
             credible evidence, are conclusive and
             binding on this Court." Allen & Rocks, Inc.
             v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
             335, 340 (1998). Evidence to the contrary
             in the record "is of no consequence if there
             is credible evidence to support the
             commission's findings." Russell Loungewear
             v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824,
             826 (1986). The consideration and weight to
             be given to the evidence, including medical
             evidence, are within the sound discretion of
             the commission. See Waynesboro Police v.
             Coffey, 35 Va. App. 264, 268, 544 S.E.2d
             860, 861 (2001); Hungerford Mechanical Corp.
             v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d
             213, 215 (1991).

Pro-Football, Inc. v. Paul, 39 Va. App. 1, 10-11, 569 S.E.2d 66,

71 (2002).

                                 III.

     In pertinent part, Code § 65.2-503 provides as follows:

             C. Compensation shall be awarded pursuant
             to § 65.2-500 for permanent and total
             incapacity when there is:

               1. Loss of both hands, both arms, both
             feet, both legs, both eyes, or any two
             thereof in the same accident;

               2. Injury for all practical purposes
             resulting in total paralysis, as determined
             by the Commission based on medical evidence;
             or

               3. Injury to the brain which is so severe
             as to render the employee permanently
             unemployable in gainful employment.

             D. In construing this section, the
             permanent loss of the use of a member shall
             be equivalent to the loss of such member,
             and for the permanent partial loss or loss
             of use of a member, compensation may be
             proportionately awarded. . . .


                                - 4 -
     Applying this statute, the Supreme Court has consistently

held that

            "[t]he phrases 'total and permanent loss' or
            'loss of use' of a leg do not mean that the
            leg is immovable or that it cannot be used
            in walking around the house, or even around
            the block. They do mean that the injured
            employee is unable to use it in any
            substantial degree in any gainful
            employment."

Georgia-Pacific Corp. v. Dancy, 255 Va. 248, 252, 497 S.E.2d

133, 135 (1998) (quoting Virginia Oak Flooring Co. v. Chrisley,

195 Va. 850, 857, 80 S.E.2d 537, 541 (1954)).   Furthermore, we

have held that "the proper inquiry[, when applying the statute,]

was whether the rated loss of use in [the employee's] legs

rendered both of [the employee's] legs effectively unusable."

Georgia-Pacific Corp. v. Dancy, 24 Va. App. 430, 437, 482 S.E.2d

867, 871 (1997), aff'd, 255 Va. 248, 497 S.E.2d 133 (1998).     See

also Pantry Pride-Food Fair Stores, Inc. v. Backus, 18 Va. App.

176, 180, 442 S.E.2d 699, 702 (1994) (holding that "evidence of

a rated loss of twenty-five percent of both legs, . . . [and]

evidence of . . . incapacity for employment, supports the

commission's finding that the employee is permanently

unemployable as a consequence of her loss of function in both

legs").

                                A.

     In denying Mawson's claim, the commission found as follows:

               The deputy commissioner denied the . . .
            Claim for permanent and total benefits based
                               - 5 -
          on the failure of the evidence to "support a
          finding that [Mawson] has a quantifiable
          disability of the legs and that the
          disability renders her incapable of gainful
          employment." . . .

             The medical evidence showed that [Mawson]
          has complained of pain in her right leg
          since the accident. The evidence did not
          show that [she] had an orthopaedic or
          neurological problem that would cause this
          pain, and it remained largely unexplained.
          Dr. [Vladimir] Gefon was not able to
          attribute [Mawson's] pain to any objective
          condition, instead diagnosing her generally
          with "back pain, legs pain." Thus, the loss
          of use to [Mawson's] legs could not based on
          any objective criteria, but only on pain.
          Dr. [Robert] Groble opined that [Mawson's]
          pain complaints were valid, and we have no
          reason to conclude that [her] pain is
          factitious. We are not persuaded, however,
          that the evidence showed that [she] lost all
          use of her right leg.

             As for [Mawson's] left leg, the evidence
          clearly did not show a 100% loss of use. If
          anything, the evidence showed that [she]
          suffered occasional pain in her left leg.
          [Mawson] testified that her left leg felt
          "heavy," but did not describe left-leg pain.
          There was no evidence of any orthopaedic or
          neurological problem with her left leg.
          Throughout [Mawson's] treatment since the
          accident, her pain complaints have generally
          involved her back and right leg, not her
          left leg. Thus, we do not believe that
          Dr. Groble's opinion that her left leg was
          100% disabled was persuasive, nor can we
          find any medical evidence supporting a
          specific loss of use of the left leg because
          of the February 1988 accident.

     Credible evidence supports these findings.   Although

Dr. Groble, a psychiatrist, "rated [Mawson's] loss of legs at

100% in regard to her ability to work" and reported she is

                             - 6 -
"unable to work in any gainful employment," he indicated this

condition flowed from "chronic intractable back pain" and gave

no ratable loss that could be separately identified to each leg.

The commission weighed his report along with other evidence and

was "not persuaded . . . that the evidence showed that [Mawson]

lost all use of her right leg" or that "any evidence support[ed]

a specific loss of use of the left leg."   The commission was

aware that Dr. Groble treats Mawson for her depression and

mental disorders.   Furthermore, the record contains no

indication   Dr. Groble ever gave Mawson a physical examination

or treated her physical conditions except by psychiatry.

     Dr. Vladimir Gefon indicated Mawson's "legs make her

disabled due to her pain, weakness, and instability" and opined

that she "sustained a permanent injury as a direct result of the

[work] accident."   In that same report, however, he listed

various restrictions Mawson should observe and said "[s]he will

need to keep [these] restrictions in mind for any job she would

engage in the future."   He has neither opined that she is

totally disabled nor quantified a percentage of disability.

Indeed, the deputy commissioner found that Dr. Gefon's report

"implies that [Mawson] is capable of gainful employment."

Affirming the deputy commissioner's decision, the commission

also referenced Dr. Gefon's indication of the restrictions on

Mawson's future employment.


                              - 7 -
     The commission was persuaded by Dr. Michael S. Scharf's

reports.   He opined that Mawson "has a chronic pain syndrome"

but that he "cannot ascribe any real organic problem in her

spine to account for the amount of pain . . . she is having."

Dr. Scharf reviewed Dr. Groble's reports and indicated

Dr. Groble has not disclosed any anatomical reasons to support

his "assumption" that Mawson's inability to work is due to "her

loss of legs."   Contrary to Dr. Groble's reports, Dr. Scharf

opined that nothing "from an anatomical standpoint, preclude[s]

. . . Mawson from being gainfully employed" and also noted that

she has "a lot of psychiatric dysfunction."   He further opined

that, "[d]ue to the longevity and nature of her pain, she has a

five percent permanent anatomical impairment."

     The commission was entitled to resolve disputed medical

evidence and to draw reasonable inferences from the evidence it

found to be more persuasive.   Hawks v. Henrico County School

Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).    A

corollary to that rule is "[i]f there is evidence or reasonable

inference that can be drawn from the evidence to support the

Commission's findings, they will not be disturbed by this Court

on appeal, even though there is evidence in the record to

support contrary findings of fact."   Caskey v. Dan River Mills,

Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983).    We hold

that credible evidence supports the commission's findings that

the evidence did not prove Mawson has a quantifiable disability
                             - 8 -
in her legs or is incapable of gainful employment as a result of

her back injury.

                               B.

     After reviewing the extensive medical evidence and the

record in this case, the commission ruled that it "has

specifically determined in prior opinions that [the Hospital]

was not responsible for treatment of [Mawson's] mental and

emotional problems."   Those rulings have never been appealed

except as the issue is indirectly raised here.

     The commission further held as follows:

          [W]e believe that the evidence established
          that [Mawson] was unable to engage in
          gainful employment. She suffers from
          several conditions, any one of which would
          be sufficient to cause her to be unable to
          work. She has been hospitalized several
          times for various problems, including chest
          pain and depression. She has received
          emergency treatment on numerous occasions
          for chest pain and migraine headaches. As
          noted . . . by . . . a recent primary care
          physician, [Mawson] has "a very complex
          medical history."

             We do not believe, however, that it is
          fair to conclude that the back injury
          suffered by [Mawson] in February 1988 caused
          [her] inability to engage in gainful
          employment. The incomplete medical records
          indicated that [Mawson] had a serious left
          knee injury in 1982, suffered from chronic
          migraine headaches for many years preceding
          1988, and suffered from severe mental and
          emotional problems since childhood. We
          recognize that [Mawson] was able to function
          at a high enough level to become a
          registered nurse and work for many years in
          that capacity before the accident. Since
          the accident, the medical evidence showed
                              - 9 -
           that [she] has largely been unable to work
           and in fact has been confined to a hospital
           on several occasions.

              *     *     *     *      *     *     *

           [T]he evidence did not show that the
           combination of [Mawson's] leg problems and
           her inability to work resulted in her being
           permanently and totally disabled as a result
           of the February 1988 accident. Under the
           Act, an employer is held responsible for the
           loss suffered by an employee because of a
           compensable injury by accident. Without
           looking at a complete picture of [Mawson's]
           medical history before the accident, it
           appears that the February 1988 accident
           marked a radical turning point in [her]
           life. When considering what incomplete
           history of treatment before February 1998
           that was before us, however, a different
           picture emerges. We do not believe that
           [Mawson's] complicated and extensive medical
           problems fairly can be traced to the
           February 1988 accident. At best, [she]
           continues to be partially disabled because
           of the February 1988 accident, and thus has
           not proved that the accident has resulted in
           permanent and total disability.

     Credible evidence supports these findings.    Although

Dr. Groble reported that Mawson had a "history of psychiatric

problems that had its onset subsequent to a work related back

injury in 1988," the commission found from other evidence in the

record that Mawson's psychiatric disability predated her work

injury.   That finding is supported by the opinions of Dr. Paul

Mansheim and Dr. Kathleen Giles.    Moreover, the evidence recited

earlier in this opinion supports the finding that Mawson has a

partial disability attributable to her work injury.


                              - 10 -
          "Medical evidence is not necessarily
          conclusive, but is subject to the
          commission's consideration and weighing."
          Furthermore, on appeal, we "[d]o not retry
          the facts, reweigh the preponderance of the
          evidence, or make [our] own determination of
          the credibility of the witnesses."

Marriott Int'l, Inc. v. Carter, 34 Va. App. 209, 215-16, 539

S.E.2d 738, 741 (2001) (citations omitted).

     For these reasons, we affirm the commission's denial of

Mawson's application for a change in condition.

                                                         Affirmed.




                             - 11 -
