                      COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia


QUALITY INN EXECUTIVE AND
 HIGHLANDS INSURANCE GROUP,
 F/K/A VIK BROTHERS INSURANCE
 GROUP/LMI INSURANCE COMPANY
                                           MEMORANDUM OPINION * BY
v.   Record No. 1593-98-4                  JUDGE NELSON T. OVERTON
                                                JUNE 15, 1999
ZOILA L. UMANA


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Tenley A. Carroll-Seli (Pierce & Howard,
          P.C., on brief), for appellants.

          William S. Sands, Jr. (Duncan & Hopkins,
          P.C., on brief), for appellee.


     Quality Inn Executive and its insurer (hereinafter referred

to as "employer") appeal a decision of the Workers' Compensation

Commission ("commission") finding it responsible for the cost of

cervical disc surgery recommended by Dr. Donald Hope for Zoila L.

Umana ("claimant").    Employer contends that the commission erred

in finding that claimant proved that (1) her cervical disc

condition was causally related to her compensable January 16, 1995

injury by accident, and (2) the proposed cervical disc surgery

constitutes necessary treatment of her compensable right shoulder



    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
injury.    For the reasons that follow, we affirm the commission's

decision.

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

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

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

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence.       See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

"'However, the question of whether the disputed medical treatment

was necessary within the meaning of Code § 65.2-603 is a mixed

question of law and fact.'    Accordingly, the commission's

conclusions as to the necessity of the disputed medical treatment

are not binding upon this Court."    Papco Oil Co. v. Farr, 26 Va.

App. 66, 73-74, 492 S.E.2d 858, 861 (1997) (quoting Lynchburg

Foundry Co. v. Goad, 15 Va. App. 710, 712-13, 427 S.E.2d 215, 217

(1993)).

     On January 16, 1995, claimant suffered a work-related

accident wherein she sustained a compensable right shoulder

injury.     The parties executed a Memorandum of Agreement ("MOA")

specifying that claimant injured her right shoulder as a result

of the accident.    The commission subsequently entered an award

of benefits based on the MOA.

     Claimant began treatment with Dr. P.M. Palumbo, Jr. on

January 23, 1995.    At that time, Dr. Palumbo noted complaints of

right shoulder, arm, and hand pain.       Between February 1995 and

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the beginning of April 1995, claimant continued under Dr.

Palumbo's care, receiving physical therapy and injections, but

her right shoulder and arm pain continued.   On April 4, 1995,

Dr. Palumbo recommended that claimant undergo arthroscopic

debridement with subacromial decompression if she failed to

improve.   On May 16, 1995, Dr. Palumbo noted that claimant

continued to have pain in her right shoulder and arm and that

her hand was numb.   He also noted that she had pain in the right

side of her neck.

     After May 16, 1995 up through July 5, 1995, claimant

continued to intermittently complain to Dr. Palumbo of hand,

neck and shoulder pain.   On July 5, 1995, Dr. Palumbo operated

on claimant's right shoulder.    Claimant reported some relief

after the surgery, but she continued to treat with Dr. Palumbo

for right shoulder, back and arm pain.

     After a July 2, 1996 office visit wherein claimant

complained of constant pain in her shoulder with radiation down

her upper arm and occasional hand numbness, Dr. Palumbo ordered

that she undergo an MRI of her cervical spine.   That MRI

revealed significant degenerative disc disease in claimant's

cervical spine at multiple levels, along with a left-sided disc

herniation at the C6-C7 level.    On July 31, 1996, Dr. Palumbo

noted claimant's continuing complaints of right shoulder and

neck pain.   Dr. Palumbo noted that claimant "may well, indeed,

be suffering from symptoms of a C6-7 nerve root irritation as

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well as a rotator cuff tendinitis."    As a result of these

findings, Dr. Palumbo referred claimant to Dr. Hope, a

neurosurgeon.

     On August 29, 1996, Dr. Hope examined claimant and agreed

that she suffered from cervical disc disease.   In his August 29,

1996 office notes, Dr. Hope noted that claimant's main complaint

was neck pain.   He also noted that claimant had undergone

surgery for her shoulder from Dr. Palumbo, but that this pain

sounded "more radicular than it does localized to the shoulder."

Dr. Hope recommended that claimant undergo discectomy and fusion

at C6-C7.   On October 10, 1996, Dr. Hope opined that the surgery

for claimant's cervical disc condition "stems from her

work-related injury of approximately one year ago."

     In a March 13, 1997 letter report, Dr. Palumbo wrote that

claimant as of her last visit had "marked tightness in the right

upper trapezius with a trigger area at the superior angle of the

scapula."   He also wrote that he told claimant "that the

upcoming [disc] surgery should improve her right upper trapezius

pain that it was unclear that the surgery would improve her

rotator cuff tenderness."

     In his March 17, 1997 deposition, Dr. Palumbo testified

that claimant's cervical disc condition occurred at the time of

her compensable accident, but that it was a separate and

distinct injury from her right shoulder injury.   Dr. Palumbo

testified that claimant's right rotator cuff problem and severe

                               - 4 -
shoulder complaints masked her cervical disc condition until at

least October 1995.    He stated that it is very difficult to

differentiate "pain in the shoulder from the shoulder itself or

pain in the shoulder from a cervical problem."

     In an April 8, 1997 letter to claimant's counsel, Dr.

Palumbo opined that "[t]his patient's clinical picture is

further complicated by her shoulder injury, which is not

directly related to her cervical disc condition, but is a

separate condition sustained in the same accident."

     Based on this evidence, the commission found that

claimant's cervical disc condition constituted a separate and

distinct injury from the right shoulder injury, which was the

only specific injury covered by the MOA and the commission's

December 1995 award.   Because claimant did not file a timely

claim pursuant to Code § 65.2-601 with respect to the cervical

disc injury, the commission ruled that a claim for the cervical

injury, in and of itself, was barred by the applicable statute

of limitations under the Supreme Court's ruling in Shawley v.

Shea-Ball Construction Co., 216 Va. 442, 219 S.E.2d 849 (1975).

     The commission then ruled that, based on the opinions of

Drs. Palumbo and Hope, claimant's cervical disc condition was

causally related to the compensable accident.    The commission

further found that "treatment for the claimant's cervical

condition is necessary treatment related to the compensable

accident to the extent that it is necessary to treat symptoms

                                - 5 -
related to the shoulder injury."     Thus, the commission held that

because the proposed cervical disc surgery was necessary to

treat the compensable right shoulder injury, the claim for that

surgery was not time-barred and employer was responsible for its

cost.

        On appeal, claimant does not dispute that the holding in

Shawley applied to the cervical disc condition to render it a

separate and distinct injury for which she failed to file a

timely claim pursuant to Code § 65.2-601.    Therefore, that

finding is binding upon us on appeal.    In addition, we are bound

by the commission's holding that claimant's cervical disc injury

resulted from the January 16, 1995 accident because that finding

is supported by credible evidence, including the opinions of

Drs. Palumbo and Hope.

        The issue that remains is whether there is credible

evidence to support the commission's finding that employer is

liable for the cost of the proposed cervical disc surgery

because that surgery is necessary in order to treat the symptoms

of claimant's compensable right shoulder injury.

        The commission's finding that the cervical disc surgery

recommended by Dr. Hope was necessary in order to successfully

treat the symptoms causally related to claimant's compensable

right shoulder injury is supported by credible medical evidence,

including the medical records of Drs. Hope and Palumbo and Dr.

Palumbo's deposition testimony.     Dr. Hope opined that the disc

                                 - 6 -
surgery "stems" from the work injury.   Based upon that opinion,

the commission could reasonably infer that the disc surgery was

necessary to treat the shoulder injury.   In addition, based upon

Dr. Palumbo's testimony that it is difficult for him to separate

claimant's shoulder complaints from her disc symptoms and his

March 13, 1997 letter in which he concluded that the disc

surgery should improve claimant's right upper trapezius pain and

might improve her rotator cuff tenderness, the commission could

reasonably conclude that the disc surgery was necessary to treat

the shoulder injury, as well as the disc condition.   "Where

reasonable inferences may be drawn from the evidence in support

of the commission's factual findings, they will not be disturbed

by this Court on appeal."   Hawks v. Henrico Co. Sch. Bd., 7 Va.

App. 398, 404, 374 S.E.2d 695, 698 (1988).

     Accordingly, we affirm the commission's findings that

claimant's cervical disc condition occurred as a result of the

compensable injury by accident and that claimant failed to file

a timely claim with respect to the disc injury.   In addition, we

affirm the commission's finding that employer is responsible for

the cost of the cervical disc surgery proposed by Dr. Hope

because it constitutes necessary treatment of claimant's

compensable right shoulder injury.

                                                        Affirmed.




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