COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
LINDA DIXON
MEMORANDUM OPINION*
v. Record No. 0459-99-3 PER CURIAM
SEPTEMBER 7, 1999
WOODTECH, INC. AND
RELIANCE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Karen Brown Ryan; Ryan Law Firm, on brief),
for appellant.
(S. Vernon Priddy, III; Sarah Y. M. Kirby;
Sands, Anderson, Marks & Miller, on brief),
for appellees.
Linda Dixon (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that she
failed to prove that she sustained a change in condition on
September 23, 1997 causally related to her compensable March 24,
1995 injury by accident. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986)). The commission's findings are binding and conclusive
upon us, unless we can say as a matter of law that claimant proved
that her condition as of September 23, 1997 was causally related
to her compensable March 24, 1995 injury by accident. See Tomko
v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
In denying claimant's application, the commission found as
follows:
[W]e find it significant that in causally
relating the claimant's most recent
condition to the work accident, Dr. [Anne
Marie] Hynes diagnosed not the previously
diagnosed strain, but rather, degenerative
disc disease and a bulging disc. She
offered no explanation for the change or why
the change would be causally related to the
work accident, especially in the context of
long periods between bouts of symptoms.
In contrast is the opinion of Dr.
[Neal A.] Jewell, an orthopedist, who
clearly stated that this condition is
unrelated to the work accident and
consistent with the claimant's age group.
[B]ecause of his specialty and because the
onset and duration of the symptoms is
uncontradicted, we find that Dr. Jewell's
opinion is more persuasive than that of Dr.
Hynes. In view of the long gaps between
symptoms and treatment following the
accident, the change in diagnosis, the
sudden onset of renewed symptoms in the fall
of 1997 and Dr. Jewell's expertise, we agree
with the Deputy Commissioner that the
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claimant has not met her burden of proving a
change in condition.
The commission articulated legitimate reasons for giving
little probative weight to Dr. Hynes's opinion. In light of
these reasons, the commission was entitled to conclude that Dr.
Hynes's opinion did not constitute sufficient evidence to prove
that claimant's post-September 23, 1997 condition was causally
related to her March 24, 1995 injury by accident. "Medical
evidence is not necessarily conclusive, but is subject to the
commission's consideration and weighing." Hungerford Mechanical
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215
(1991). Moreover, in its role as fact finder, the commission
was entitled to accept Dr. Jewell's opinion and to reject the
contrary opinion of Dr. Hynes. "Questions raised by conflicting
medical opinions must be decided by the commission." Penley v.
Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236
(1989).
Because the medical evidence was subject to the
commission's factual determination, we cannot find as a matter
of law that the evidence proved that claimant's condition as of
September 23, 1997 was causally related to her March 24, 1995
injury by accident. Accordingly, we affirm the commission's
decision.
Affirmed.
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