                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Retired Judge Duff ∗


FOOD LION, INC.
                                             MEMORANDUM OPINION ∗∗
v.   Record No. 2180-00-3                         PER CURIAM
                                               JANUARY 30, 2001
DARRELL ELWOOD MILGRIM


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Cathie W. Howard; Pierce & Howard, P.C., on
             brief), for appellant. Appellant submitting
             on brief.

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


     Food Lion, Inc. appeals a decision of the Workers'

Compensation Commission awarding benefits to Darrell Elwood

Milgrim.     Food Lion contends that the commission erred in

finding that Milgrim's current psychiatric and orthopedic

conditions and resulting treatment and disability are causally

related to his compensable October 27, 1997 injury by accident.

We affirm the award.




     ∗
       Retired Judge Charles H. Duff 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.
     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).

Furthermore, we are required to uphold factual findings made by

the commission if those findings are supported by credible

evidence.    See James v. Capitol Steel Constr. Co., 8 Va. App.

512, 515, 382 S.E.2d 487, 488 (1989).

                        Psychiatric Condition

     In ruling that Milgrim's psychiatric treatment and

resulting disability are causally related to his compensable

work injury, the commission found as follows:

            The medical record reflects that [Milgrim]
            first received psychiatric treatment in
            April 1999, and was diagnosed with major
            depression. We have before us only two
            medical opinions regarding the issue of
            whether this condition is causally related
            to the industrial accident of October 27,
            1997. Both Dr. [James B.] Stone[, III] and
            Dr. [Neil] Dubner concluded that there was a
            causal relationship. These opinions remain
            uncontradicted, and are consistent with
            [Milgrim's] testimony at the hearing as well
            as contemporaneous medical reports. Dr.
            [Trip] Gardner opined that [Milgrim] was
            totally disabled from his psychiatric
            condition. No physician or psychiatrist has
            since found [Milgrim] capable of returning
            to work in any capacity from a psychiatric
            standpoint.

     The uncontradicted opinions of Drs. Stone, Dubner, and

Gardner, coupled with Milgrim's testimony and the

contemporaneous medical records, constitute credible evidence to


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support the commission's findings.    Therefore, those findings

are binding and conclusive upon us on appeal.

                      Orthopedic Condition

     In ruling that Food Lion failed to prove that Milgrim's

current orthopedic condition and resulting disability are not

causally related to his compensable work injury, the commission

found as follows:

               We cannot determine whether Dr.
          [Murray] Joiner [was] aware of [Milgrim's]
          pre-injury duties when he concluded that
          [Milgrim] had reached "baseline." Further,
          we cannot determine whether Dr. Joiner had
          access to all of [Milgrim's] medical records
          documenting treatment prior to October 1997.
          We do not find Dr. Joiner's opinion
          persuasive on this issue. We note in
          passing that Dr. Joiner offered his opinion
          on the issue solely from an objective
          orthopedic standpoint, and did not address
          the issue of whether [Milgrim's] complaints
          of continuing pain were either causally
          related to the work injury or disabling.
          This component was only addressed by Dr.
          Stone and Dr. Dubner.

               Dr. [James] Leipzig and Dr. [Paul]
          Morin offered opinions in agreement with Dr.
          Joiner. However, Dr. Leipzig had not
          examined [Milgrim] for approximately 10
          months prior to rendering his opinion, and
          Dr. Morin had not evaluated [Milgrim] for
          more than 15 months as of February 14, 2000.
          Additionally, the opinions offered addressed
          the issue of causation and disability only
          from an objective orthopedic standpoint
          without addressing the issue of pain or
          psychiatric disability. We also note that
          we cannot determine whether these physicians
          were fully aware of [Milgrim's] pre-injury
          work duties. We find these opinions to be
          of little probative value.

                              - 3 -
                Dr. Stone opined that [Milgrim's]
           pre-existing condition predisposed him to
           recurrent injury, and that his current
           symptoms of pain are causally related to the
           industrial accident. Dr. [James] Vascik
           likewise found a causal relationship and
           directly addressed [Milgrim's] current
           ability to stand for prolonged periods and
           lift up to 70 pounds. The greater weight of
           the evidence leads to the conclusion that
           [Milgrim] is not capable of performing these
           tasks. We find the opinions of Dr. Stone
           and Dr. Vascik to be persuasive.

     The opinions of Drs. Stone and Vascik support the

commission's findings.   In its role as fact finder, the

commission weighed the medical evidence and accepted the

opinions of Drs. Stone and Vascik, while rejecting the contrary

opinions of Drs. Joiner, Leipzig, and Morin.   "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, "[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).

     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 Milgrim's current

orthopedic condition and resulting disability are not causally

related to his compensable work injury.




                               - 4 -
For these reasons, we affirm the commission's decision.

                                                   Affirmed.




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