                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Retired Judge Cole*


LONNIE JAMES BREEDING
                                              MEMORANDUM OPINION **
v.   Record No. 1134-01-3                          PER CURIAM
                                               SEPTEMBER 11, 2001
CLINCHFIELD COAL COMPANY/
 THE PITTSTON COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Ginger J. Largen; Morefield Kendrick Hess &
             Largen, P.C., on brief), for appellant.

             (Ramesh Murthy; Lisa Frisina Clement;
             PennStuart, on brief), for appellee.


     Lonnie James Breeding contends the Workers' Compensation

Commission erred in finding that (1) Breeding was not totally

disabled due to a psychiatric condition causally related to his

compensable June 28, 1998 injury by accident; and (2) Breeding

unjustifiably refused selective employment offered by

Clinchfield Coal Company.       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.


     *
       Retired Judge Marvin F. Cole took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
     **
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                  I.

     "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).   Thus, "[q]uestions 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).   Unless we can say as a matter of law that

Breeding's evidence sustained his burden of proving that he was

totally disabled as a result of a psychiatric condition causally

related to his compensable injury by accident, the commission's

findings are binding and conclusive upon us.    See Tomko v.

Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835

(1970).

     In ruling that Breeding's evidence failed to sustain his

burden of proof, the commission accepted the opinions of

Drs. Paul R. Kelley and Richard G. Salamone and rejected the

contrary opinions of Drs. Neil Dubner and B. Wayne Lanthorn, a

licensed clinical psychologist.    The commission found as

follows:

           The record reflects that Dr. [Neal] Jewell,
           [Breeding's treating orthopedist,] evaluated
           [Breeding] on a consistent basis throughout
           the relevant period[, i.e., from July 1999
           forward]. Neither before nor after July
           1999 did Dr. Jewell note any signs of any
           disabling psychiatric condition, or, in
           fact, any psychiatric signs or symptoms of

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any kind. We note that Dr. Jewell never
requested a referral for psychiatric
treatment at any stage. In July 1999,
contemporaneous with Dr. Dubner's first
evaluation, [Breeding] independently sought
an evaluation from Dr. [Ken] Smith. As part
of his evaluation Dr. Smith performed a
mental status examination from which he
concluded that [Breeding] did not suffer
from any psychiatric condition, whether
disabling or not.

     A careful reading of Dr. Dubner's
treatment records reveal that his diagnosis
and opinion is based primarily on
[Breeding's] reports of incapacitating pain
of such severity that [he] must spend a
significant portion of the time lying down.
Dr. Dubner noted by history that [Breeding]
"frequently will lie down to give himself
relief" and "a number of months ago he spent
probably half his time lying around just
trying to gain some relief." We contrast
this history with the contemporaneous
medical reports from Dr. Jewell, Dr. Smith,
Dr. [Earl K.] Wilson, Dr. [Charles] Bolick,
and that of the evaluator for the Functional
Capacity Evaluation [("FCE")]. None of the
physicians noted complaints to this degree.
Dr. Jewell as well as the therapist who
performed the [FCE] noted signs of symptom
magnification. Likewise Dr. Kelley and
Dr. Salamone noted test results consistent
with symptom magnification. Dr. Salamone's
opinion that it would require a "fairly
severe depression" to preclude engagement in
gainful employment, was not specifically
rebutted.

     Further, we note that Dr. Jewell
evaluated [Breeding] in January and March
2000. During neither visit did he document
any complaints of psychiatric impairment nor
signs and symptoms thereof independent of
any subjective complaints. The emergency
room physician did not record by history any
complaints regarding psychiatric symptoms or



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          disability flowing therefrom [on February
          22, 2000].

     The commission, as fact finder, was entitled to weigh the

medical evidence.   In doing so, the commission accepted the

opinions of Drs. Kelley and Salamone, while rejecting the

contrary opinions of Drs. Dubner and Lanthorn.     Thus, viewed 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), the evidence demonstrates an absence of any

significant psychiatric symptoms or complaints by Breeding to

Drs. Jewell, Smith, Wilson, and the FCE evaluator during the

relevant time period.   The evidence also supports the reports of

Breeding's symptom magnification.     Moreover, in light of the

opinions of Drs. Kelley and Salamone, the evidence does not

establish as a matter of law that Breeding's evidence proved he

was totally disabled due to a psychiatric condition causally

related to his compensable accident as of February 25, 2000.

                                II.

     "To support a finding of refusal of selective employment

'the record must disclose (1) a bona fide job offer suitable to

the employee's capacity; (2) [a job offer that was] procured for

the employee by the employer; and (3) an unjustified refusal by

the employee to accept the job.'"      James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989)

(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App.

                               - 4 -
97, 98, 335 S.E.2d 379, 380 (1985)).   "When the employer

establishes that selective employment was offered to an employee

that was within the employee's capacity to work, the employee

bears the burden of establishing justification for refusing the

offered employment."   Food Lion, Inc. v. Lee, 16 Va. App. 616,

619, 431 S.E.2d 342, 344 (1993).

     Breeding failed to prove that as of February 25, 2000, he

was totally disabled due to a psychiatric condition causally

related to his compensable accident.   Furthermore, Dr. Jewell's

March 6, 2000 opinion indicated that Breeding's physical

condition had not changed since January 17, 2000 and that

Breeding could perform the selective employment previously

approved.   Therefore, we cannot conclude as a matter of law that

Breeding proved he was justified in refusing selective

employment as of that date.

     For these reasons, we affirm the commission's decision.

                                                            Affirmed.




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