COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Malveaux and Duffan UNPUBLISHED
ANTONYA HERRING MEMORANDUM OPINION* BY v. Record No. 0257-25-1 JUDGE KEVIN M. DUFFAN FEBRUARY 24, 2026 DBHDS/CENTRAL STATE HOSPITAL, ET AL.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Daniel Renfro; Renfro & Renfro, PLLC, on brief), for appellant.
(Jason S. Miyares,1 Attorney General; Thomas L. Sanford, Deputy Attorney General; Jacqueline C. Hedblom, Senior Assistant Attorney General/Trial Section Chief; Scott John Fitzgerald, Senior Assistant Attorney General, on brief), for appellee.
Antonya Herring appeals the decision of the Workers’ Compensation Commission
denying her claim for permanent total disability benefits based on a head injury she sustained
while working as a nurse. The Commission concluded that Herring failed to prove she had
sustained a brain injury “so severe as to render [her] permanently unemployable in gainful
employment” under Code § 65.2-503(C). We affirm because there is credible evidence in the
record to support the Commission’s decision.2
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. 2 Having examined the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” See Code § 17.1-403(ii)(c); Rule 5A:27(c). BACKGROUND
In October 2012, a patient at Central State Hospital attacked Herring while she was
working as a nurse. The patient struck Herring with his fists on her face, the back of her head,
and her shoulders. The Commission granted her temporary total disability benefits and lifetime
medical benefits in November 2012 for a facial/head contusion, lacerations to the right side of
her mouth, a right shoulder contusion, and post-traumatic headache.
Herring filed a claim seeking permanent total disability benefits in April 2022. She also
sought to add post-traumatic stress disorder (PTSD) as a compensable consequence of her
injuries and claimed that she suffered a concussion and/or traumatic brain injury from the
accident. She submitted medical records along with her claim.
Herring was initially treated at CJW Chippenham Medical Center’s Occupational
Medicine facility. Her physician at CJW referred her for a neurological evaluation based on her
reports that she was experiencing persistent headaches approximately a month after the accident.
In December 2012, neurologists at Virginia Commonwealth University Medical Center (VCU)
diagnosed her with post-traumatic headaches. Beginning with that 2012 report, Herring reported
experiencing other symptoms, including insomnia, night terrors, memory difficulties, cognitive
difficulties, and occasional dizziness.
Herring received regular neurological treatment, as well as limited instances of vestibular
therapy and speech-language therapy. Her symptoms improved somewhat but did not fully
resolve. In November 2014, she was diagnosed with a “closed traumatic brain injury.” In
January 2015, she was diagnosed with post-concussive syndrome with headaches, memory
changes, and dizziness.
In March 2015, Dr. James B. Wade performed a neuropsychological evaluation and noted
that Herring’s scores were so inexplicably low and inconsistent on some of the intellectual
-2- functioning tests that he could not rule out the possibility that Herring deliberately performed
poorly on the tests. As Dr. Wade opined, the data “suggest[ed] a lack of effort and motivation in
taking the neuropsychological measures,” which could invalidate the test results. In fall 2017, a
VCU neurologist determined that Herring had likely reached “maximum benefit from treatment,”
although she continued to experience memory disturbances and regular headaches. The
treatment she received thereafter related primarily to managing her headaches, insomnia, and
psychological symptoms. Herring told a neurologist in October 2019 that she still had “at least
15 headaches per month” and regular insomnia, but the neurologist was “not optimistic that after
this many years from her injury” they could “make significant advances and management.”
Herring also received psychological treatment from Dr. Mary Sciotto, a clinical
psychologist, beginning in 2016. In a May 2018 letter, Dr. Sciotto explained that she treated
Herring for PTSD and various related symptoms, including anxiety, depression, difficulty
concentrating, hypervigilance, nightmares, fear of being around others, anger, and frustration.
Dr. Sciotto noted that “PTSD is a difficult to treat and recalcitrant disorder, often causing
symptomology which lasts for the lifetime of the patient.” In a July 2019 letter, Dr. Sciotto
noted that her treatment of Herring was limited to psychological symptoms, rather than
physiological illness or injury.
Dr. Ronald S. Federici, a licensed clinical psychologist, conducted a neuropsychological
evaluation of Herring in late 2021. Dr. Federici tested Herring’s intellectual-cognitive
functioning, attention, concentration, visual-spatial, perceptual, language, and expressive
abilities. He found that Herring performed poorly in each of these areas and noted that she “was
confused on simple attention, learning, and academic tasks and has very limited academic
potential at this time.” According to Dr. Federici, Herring “struggled with visual-spatial and
perceptual organization skills and had no functional memory or learning abilities. She was
-3- clumsy in her gait and balance, in addition to being hypersensitive to noise, sights, and sounds.”
He further noted that Herring showed “a severe pattern of weaknesses in attention, memory, and
learning with no functional executive skills” and that “[s]he [wa]s lost and confused on most
every task and require[d] constant prompts and redirection, as well as additional time, as she
move[d] towards an almost ‘fugue’ state when she [wa]s challenged with any type of learning or
processing task.”
Based on the testing, Dr. Federici concluded, “there is absolutely and unequivocally no
question that Ms. Herring displays a pattern of generalized, diffuse Organic Brain
Dysfunction/Static Encephalopathy related to a very severe Traumatic Brain Injury.” He opined
that Herring’s “overall neuropsychological profile indicates a pattern of ‘global reduction’ from
her pre-morbid cognitive and psychological profile, which was highly functional” before the
injury, when she worked as a nurse. This global reduction included a “pervasive pattern of loss
in attention skills; intellect and problem-solving capabilities; severe impairments in language
(severe impairments in receptive and expressive abilities) in addition to a total reduction/loss in
her overall academic abilities.” Dr. Federici concluded that “Herring’s intellectual-cognitive
abilities fall in the Severely Impaired range as she is grossly impaired in receptive and expressive
language.” Finally, he noted that his testing indicated “no malingering or ‘secondary gain’ but
more of an individual who is still aware that she has lost a great deal and is overwhelmed,
frustrated, and in a pervasive state of depression and debilitating anxiety due to the loss of
neurocognitive skills on a global level.” He recommended that Herring be considered for a
cognitive rehabilitation program for individuals with brain injuries.
Dr. Sciotto filled out an “Attending Physician’s Statement” on the nature of Herring’s
“Long Term Disability” in March 2022. Dr. Sciotto noted that Herring had a “Class 3” level of
mental/nervous impairment, meaning that she was “able to engage in only limited stress
-4- situations and engage in only limited interpersonal relations (moderate limitations).” Dr. Sciotto
also opined that Herring could not return to nursing but was “a suitable candidate for trial
employment” in some other job. Dr. Sciotto noted on the form, however, that her
recommendations were for “psychological purposes only” and that Herring’s “neurological
limitations may differ.”
Dr. Raymond Decker, Herring’s primary care physician, filled out the same “Attending
Physician’s Statement” in March 2022 and similarly opined that Herring could not return to
nursing but could potentially do non-nursing work. He also concluded that Herring had a “Class
3” level of mental/nervous impairment.
Dr. Edward Peck, a licensed clinical psychologist, conducted an independent
neuropsychological evaluation of Herring in March 2022. Dr. Peck opined that Herring did not
meet the diagnostic criteria for a concussion or traumatic brain injury, and she required no
further treatment related to the 2012 work incident. Dr. Peck noted that there was no initial
diagnosis of a concussion and that “subsequent diagnosis of post concussion syndrome only
gradually filtered into the record, along with a movement of migraine to post traumatic migraine
and post TBI migraine.” He also noted that in records prepared close to the time of the incident,
Herring denied losing consciousness during the attack. For example, in December 2012, Herring
“denie[d] losing consciousness” but stated that she had “felt dazed and confused” after the
attack. Herring later told treating providers that she had lost consciousness after the attack.
Finally, Dr. Peck agreed with Dr. Wade that several tests aimed at diagnosing malingering
suggested that Herring was deliberately exaggerating her cognitive deficits.
Dr. Federici disagreed with Dr. Peck’s evaluation. He prepared a statement asserting that
Dr. Peck’s evaluation was not sufficiently comprehensive but rather was limited to unreliable
tests focusing on the possibility of malingering. In Dr. Federici’s view, Dr. Peck’s conclusion
-5- about malingering was “unequivocally incorrect.” Dr. Federici also found Dr. Peck’s suggestion
that Herring needed no further treatment to be “almost incomprehensible” given that Herring “is
totally nonfunctional and unable to work since the incident due to severe cognitive deterioration,
confusion, disorganization, regression in speech, language, and basic academics, no functional
memory and learning, no functional executive skills, and profound PTSD, which has been
consistently validated by a qualified psychologist in PTSD issues.” Finally, Dr. Federici stated
that Herring should be considered “chronically and permanently disabled.”
At an evidentiary hearing before a deputy commissioner, Herring testified that she could
not return to work because of the lingering symptoms of her brain injury. Additionally, she
claimed that she could not “function well” due to a combination of memory loss, “noise
sensitivity,” “light sensitivity,” and “cognitive sensitivity.” She had “great difficulty” reading
and writing. She testified that she also experienced psychological symptoms, such as excessive
fear. She described the effects of her injury as “terrifying.” She explained that she would lay
down frequently, rarely left home, and had to rely on her family for support. She could not
“tolerate being out” and would send her family to places on her behalf. She had a valid driver’s
license, however, and was able to drive. She also conceded that no court had appointed a
guardian or conservator to handle her affairs, but stated that her “husband helps.”
The deputy commissioner found that Herring had proved entitlement to permanent total
disability benefits.3 Central State Hospital then requested review, and the Commission reversed,
3 The deputy commissioner initially issued an opinion denying Herring’s claim. He concluded that Herring suffered PTSD because of the accident and that Herring had suffered a concussion and traumatic brain injury, but that her claim based on the concussion and/or traumatic brain injury was barred by the statute of limitations. Because the claim for permanent total disability was predicated upon a compensable brain injury, the deputy commissioner denied the claim. Herring requested review, and the full Commission reversed the deputy commissioner’s decision. The Commission found the concussion/traumatic brain injury claim was not time-barred and the claimant proved that she suffered a concussion and traumatic brain injury in -6- concluding that the evidence was insufficient to establish that Herring’s brain injury rendered her
unemployable in gainful employment.
The Commission reviewed the opinions provided by Dr. Sciotto, Dr. Decker, Dr. Peck,
and Dr. Federici. The Commission found that, although Herring suffers persistent PTSD
symptoms, “causing disability does not satisfy the terms of . . . Code § 65.2-503(C),” which
requires proof of a compensable brain injury rendering a claimant permanently unemployable in
gainful employment. Thus, the Commission did not find Dr. Sciotto’s medical opinion
“particularly probative of the issue before [the Commission]” because Dr. Sciotto’s treatment of
Herring related primarily to her PTSD diagnosis. Moreover, the Commission concluded that
Dr. Sciotto’s “opinions do not relate to the effects of [Herring’s] brain injury” because
Dr. Sciotto’s recommendations were for “psychological purposes” rather than Herring’s
“neurological limitations.” The Commission also noted that Dr. Sciotto had not found that
Herring had any physical impairment and had classified Herring as having a “Class 3” level of
mental/nervous impairment. Thus, the Commission concluded that Dr. Sciotto’s opinions
established only that Herring is partially incapacitated due to her PTSD.
The Commission found that Dr. Decker’s statement “also provides little guidance,”
noting its similarity to Dr. Sciotto’s statement. The Commission noted that Dr. Decker’s report
also “did not reference a diagnosis of a brain injury and did not specify whether [Herring]
suffered any incapacity due to her brain injury.” Dr. Decker and Dr. Sciotto both expressed
opinions that Herring was totally disabled from working as a nurse, but not from “any other
work.” But neither report contained any explanations supporting those conclusions.
the accident. The Commission remanded the case to the deputy commissioner to consider whether the evidence was sufficient to support an award of permanent total disability benefits. The deputy commissioner found that he did not need to take additional evidence to decide the issue, and neither party objected. -7- The Commission gave “little weight” to Dr. Peck’s opinion because it was based in part
on the “faulty premise” that Herring had not suffered a concussion or traumatic brain injury at
all. The Commission found that premise to be belied by the medical records and noted that the
Commission had previously decided that Herring had suffered a traumatic brain injury from the
accident.
Next, the Commission found that Dr. Federici’s opinions failed to “address this precise
issue” being decided. According to the Commission, Dr. Federici did not specify whether
Herring’s permanent disability is total or partial, and he “did not specify whether [Herring] was
unable to perform her pre-injury jobs or whether she was unable to perform any job.” The
Commission also noted that Dr. Federici’s recommendation that Herring undergo a cognitive
rehabilitation program implied that her symptoms could improve, and he did not elaborate upon
whether the treatment would impact her ability to work. Ultimately, the Commission concluded
that Dr. Federici’s statements that Herring “should be considered ‘chronically and permanently
disabled’ and that she has been ‘unable to work’ since the accident are not, without further
explanation, sufficient to prove that she is permanently unemployable in any gainful
employment.” (Emphasis omitted).
The Commission further found that, although it was “persuaded that [Herring] has
experienced a decline in her cognitive abilities since the accident,” it disagreed with
Dr. Federici’s conclusion that Herring is “totally non[-]functional.” The Commission pointed
out that Herring could drive and provided “coherent testimony at [the] hearing.” The
Commission found these facts probative, although it noted that “these abilities may or may not
translate into employability.”
Because Dr. Federici was “the only expert who provided an opinion on the claimant’s
work capacity as it relates to her brain injury,” the Commission found that the failure of his
-8- reports to address the relevant issues was “significant.” Thus, the Commission concluded that
Herring had failed to prove that she is not employable in any gainful employment and reversed
the deputy commissioner’s decision.4
ANALYSIS
“An award of the Workers’ Compensation Commission is ‘conclusive and binding as to all
questions of fact.’” Med. Mgmt. Int’l & Travelers Indem. Co. of Am. v. Jeffry, 75 Va. App. 679, 684
(2022) (quoting Code § 65.2-706). “Consequently, on appeal, ‘we do not retry the facts before the
Commission nor do we review the weight, preponderance of the evidence, or the credibility of
witnesses.’” Jeffreys v. Uninsured Employer’s Fund, 297 Va. 82, 87 (2019) (quoting Caskey v. Dan
River Mills, Inc., 225 Va. 405, 411 (1983)). If credible evidence or reasonable inferences drawn
from the evidence “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.” Id.
(quoting Caskey, 225 Va. at 411). “The fact that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the commission’s finding.” Cafaro Constr. Co.
v. Strother, 15 Va. App. 656, 660 (1993) (quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894 (1991)).
A claimant has the burden to prove, by a preponderance of the evidence, her entitlement to
permanent total disability benefits. See Paramont Coal Co. Va., LLC v. McCoy, 69 Va. App. 343,
349 (2018). To be entitled to benefits under Code § 65.2-503(C)(3), Herring was required to prove
that her brain injury is “so severe as to render [her] permanently unemployable in gainful
employment.” Code § 65.2-503(C)(3).
4 The Commission declined Central State Hospital’s request to reconsider its findings that the brain injury claim was timely and that Herring proved she suffered a concussion and traumatic brain injury in the accident. -9- “[G]ainful employment is employment that is beneficial to both the worker performing the
job, as well as the employer providing the opportunity.” Great N. Nekoosa Corp. v. Wood, 37
Va. App. 54, 59 (2001). A finding that a claimant is employable in gainful employment must
“consider the labor market and the motivations of a potential employer.” Id. at 60. The term’s
definition “implies that the employer needs the employee as it would need any other employee to
perform the tasks of the occupation.” Id. at 61. To ignore such considerations “would swallow the
rule such that any brain injury no matter how severe would be noncompensable if one employer
were willing to hire an individual for non-business reasons, such as compassion.” Id. at 60.
Thus, to be employable in gainful employment does not mean that “the individual could
engage in ‘any occupation whatsoever.’” Id. at 61 (quoting Atl. Life Ins. Co. v. Worley, 161 Va.
951, 959 (1934)). Rather, “[t]otal disability may be found in the case of workers who, while not
altogether incapacitated for work, are so handicapped that they will not be employed regularly in
any well-known branch of the labor market.” Id. (emphasis omitted). The focus of the test is “the
probable dependability with which [the] claimant can sell his or her services in a competitive labor
market, undistorted by such factors as business booms, sympathy of a particular employer or
friends, temporary good luck, or the superhuman efforts of the claimant to rise above crippling
handicaps.”5 Id.
In this case, the Commission found the evidence insufficient to prove that Herring is
permanently unemployable in any gainful employment. “‘The probative weight to be accorded
[medical] evidence is for the Commission to decide; and if it is in conflict with other medical
5 In Great N. Nekoosa Corp., this Court held that a claimant who suffered a severe brain injury was permanently unemployable in gainful employment despite his former employer offering him part-time employment as a work order processor. 37 Va. App. at 57-58, 62-63. The claimant performed fewer than half the job tasks required of the last employee in the position, often was unable to perform his assigned tasks, and worked 12 or fewer hours per week because of fatigue and headaches. Id. - 10 - evidence, the Commission is free to adopt that view “which is most consistent with reason and
justice.”’” Ga.-Pacific Corp. v. Robinson, 32 Va. App. 1, 5 (2000) (alteration in original) (quoting
C.D.S. Constr. Services v. Petrock, 218 Va. 1064, 1070 (1978)). And “[a] question raised by
conflicting medical opinion is a question of fact.” Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662,
672-73 (1998) (quoting WLR Foods v. Cardosa, 26 Va. App. 220, 230 (1997)).
Herring focuses primarily on Dr. Federici’s opinions. Herring is correct that, when
weighing medical evidence, we do not require “magic words” in physicians’ reports. McCoy, 69
Va. App. at 360 (quoting Commonwealth v. Bakke, 46 Va. App. 508, 527 (2005)); see id. (“The
relevant subsection of the Virginia Code does not require an expressly stated physician’s opinion
that a claimant’s condition meets the criteria for permanent disability.”). Thus, Dr. Federici’s
failure to specifically state that Herring is unable to work “any job” is not dispositive of the issue
before us if his report otherwise provides evidence to conclude that Herring is permanently and
totally disabled. But the Commission not only found Dr. Federici’s report insufficient for its failure
to address the precise relevant issues; it also discredited his conclusion that Herring is “totally
non-functional.”
In short, the severity of the picture painted by Dr. Federici’s report is anomalous when
compared with the rest of the record evidence. None of the neurology reports dating back to 2012
describe a person with the level of cognitive decline that Dr. Federici describes. In January 2014,
for example, Herring reported that she was “not feeling as foggy or slow during [the] day,” would
go to the gym, and would do housework, at least for ten minutes at a time. And an August 2017
patient note indicates that “[f]unctionally, [Herring] is independent, getting out and driving and
going to a gym.” Dr. Decker and Dr. Sciotto both opined in 2022 that Herring was capable of doing
work other than nursing. Even Dr. Sciotto’s reports, despite describing Herring as suffering from
severe emotional distress and various cognitive issues, do not depict a person who lacked all ability
- 11 - to function. Additionally, Dr. Wade and Dr. Peck raised questions about whether Herring was
deliberately exaggerating her symptoms. And, as the Commission noted, Herring could drive and
provided coherent testimony. There is little else in the record apart from Dr. Federici’s report to
support Herring’s claim that she is totally, permanently disabled.6
It appears from the record that even if Dr. Federici had used the so-called “magic words”
mirroring the language in Code § 65.2-503(C)(3), viewed as a whole, the record contains credible
evidence to support the Commission’s conclusion that Herring failed to prove she is unemployable
in any gainful employment.
CONCLUSION
The Commission was presented with a voluminous medical record as well as the opinions
of four separate medical providers. Despite finding certain aspects of each provider’s opinion
unpersuasive or not probative to the issues, the cumulative effect of all of the evidence presented
supported the Commission’s conclusion that Herring failed to prove she is permanently
unemployable in a gainful employment. Thus, the Commission’s judgment is affirmed.
Affirmed.
6 We also reject Herring’s argument that the Commission failed to consider all the evidence. Herring submitted over 1,000 pages of medical records; that the Commission did not expressly discuss each piece of evidence in its opinion does not mean that it failed to consider that evidence. The only evidence Herring identifies with this assignment of error are the 2017 VCU report that Herring had reached “maximum benefit from treatment”—which may be relevant to the permanence of Herring’s injuries but does not establish total disability—and Dr. Federici’s report. In any event, the existence of “contrary evidence in the record is of no consequence if there is credible evidence to support the commission’s finding.” Strother, 15 Va. App. at 660. - 12 -