                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia


GEORGE MONTGOMERY COOK
                                           MEMORANDUM OPINION * BY
v.   Record No. 2357-99-3                 JUDGE SAM W. COLEMAN III
                                                APRIL 25, 2000
ISLAND CREEK COAL COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          P. Heith Reynolds (Wolfe & Farmer, on brief),
          for appellant.

          Michael F. Blair (Rebecca E. Wallace; Penn,
          Stuart & Eskridge, on brief), for appellee.


      George M. Cook appeals the Workers' Compensation

Commission's decision denying his application for temporary total

disability benefits.   Cook argues that the commission erred in

finding that his disability was not causally related to his

October 20, 1996 injury by accident.   We disagree and affirm the

commission's decision.

                             BACKGROUND

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

to Island Creek Coal Company, the prevailing party.      See R.G.

Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d

788, 788 (1990).   So viewed, the evidence proved that Cook was

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
employed by Island Creek Coal Company as an underground section

foreman.   As part of his job duties, Cook would routinely walk

through the mines, which ranged in height from four and one-half

feet to six feet.   On October 20, 1996, while Cook was walking

through an unfamiliar portion of the mine, he "misjudged" the

height of the roof line and hit his head on the roof.   Cook

testified that the blow knocked him down and that he experienced

pain in his neck.   He immediately reported the incident to his

supervisor.

     Cook was treated on October 24, 1996 by Dr. Clinton H.

Sutherland, an internist.   Cook reported left hand numbness and

neck pain.    In Dr. Sutherland's office note dated October 24,

1996, he reported that Cook complained of experiencing similar

problems since an injury in 1992.   Dr. Sutherland also noted

that Cook hit his head in a similar work-related injury in July

1996 and that he was treated by an emergency room physician four

to five weeks prior to the October 20, 1996 incident.   In an

office note dated November 6, 1996, Dr. Sutherland reported that

Cook stated that "he rammed his head onto the roof, which he

states he has done on several occasions (including his report of

having done it in July of this year)."

     In November 1996, Cook was referred to Dr. Matthew Wood,

Jr., a neurosurgeon.   On November 27, 1996, Dr. Wood reported

that Cook complained of severe neck, left arm, and hand pain.


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Cook reported having this pain shortly after his October 20,

1996 accident.   Dr. Wood also noted that Cook "denie[d] any

history of neck injury or spinal problems."   In November 1996,

Cook underwent a cervical diskectomy to remove a large

multi-fragmented cervical disk at the C6-7 level.   On February

12, 1997, Dr. Wood opined that "[b]ased on the patient's

consistent history, I must suspect that this injury is related

to his work."    Dr. Wood also noted that Cook expressed concern

that although "he injured his neck at work; he was allegedly

talked into not putting it on compensation; and now he feels he

should have."    On March 12, 1997, Dr. Wood stated that Cook "is

still contesting of his compensation claim.   Again, based upon

his history, it appears that he was injured at work; and we

reviewed the history of his injury again in the office today."

Dr. Wood stated that Cook may return to work "whenever he feels

up to it."   Cook returned to work on April 2, 1997.

     Cook initially began treatment with Dr. Sutherland on

March 20, 1996, at which time he reported that he had lower back

pain, arm and shoulder pain, numbness and "tingling" in his

fingers, and pain in his hands when gripping.   In May 1996, Cook

again complained of lower back pain emanating from a

work-related back injury in 1992.   The treating physician opined

that Cook suffers from chronic right lumbar radicular syndrome.




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     At the hearing, Cook admitted that he was seen by an

emergency room physician on September 8, 1996 for neck and left

arm pain.    The emergency room records reflect Cook stated that

he hit his head two weeks prior to September 8, 1996 and that he

continues to experience neck and shoulder pain.      At the hearing,

Cook denied having previous problems with his neck or receiving

treatment for neck pain "in that location prior to the incident."

He admitted, however, that he has had "sprains and strains" in

that area.

     Cook filed an application seeking temporary total disability

benefits from October 21, 1996 through April 1, 1997.       The

commission denied the application, finding that Cook suffered a

compensable injury by accident when he hit his head but that he

failed to prove the disability to his neck was causally related to

the accident.

                              ANALYSIS

     "The actual determination of causation is a factual finding

that will not be disturbed on appeal if there is credible

evidence to support the finding."       Ingersoll-Rand Co. v. Musick,

7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).      "In

determining whether credible evidence exists, the appellate

court does not retry the facts, reweigh the preponderance of the

evidence, or make its own determination of the credibility of

the witnesses."    Wagner Enters., Inc. v. Brooks, 12 Va. App.


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890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted).   On

appellate review, it is not sufficient for a claimant to prevail

by merely demonstrating that the fact finder could have found

that the disability was causally related to the accident.

Unless we can say that Cook's evidence proved or established

causation as a matter of law, the commission's factual findings,

including causation, 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 disregarding Dr. Wood's opinion on causation, the

commission found that Dr. Wood's records indicate that he was

unaware of Cook's prior history of neck and shoulder complaints.

The commission stated that:

          [t]he histories of the prior accidents and
          medical treatment are indispensable to a
          considered opinion on the relationship
          between Dr. Wood's treatment and the October
          1996 accident. Since Dr. Wood did not have
          important information which could clearly
          influence his opinion, his opinion on
          causation does not have a reliable
          foundation.

The commission also found Dr. Sutherland's opinion regarding

causation unpersuasive because Dr. Sutherland "basically adopted

Dr. Wood's opinion and has not explained the inconsistencies in

his own record."   Additionally, the commission found that Cook's

testimony was inconsistent with the medical records.




                               - 5 -
     "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).   Here, the commission, after weighing the

medical evidence, rejected the opinions of Drs. Wood and

Sutherland.    The record established that Dr. Wood was not aware of

Cook's prior complaints of neck and shoulder pain and resultant

medical treatment which occurred during the weeks prior to the

October 20, 1996 injury by accident.    In addition, Dr. Wood was

not aware of Cook's July 1996 accident, where he hit his head and

complained of neck pain that did not resolve.   Contrary to Cook's

suggestion, the record does not show that Dr. Wood reviewed or had

access to Dr. Sutherland's records.

     Moreover, Dr. Sutherland's February 17, 1997 office note, in

which he opines that the October 20, 1996 accident, rather than

the September 9, 1996 accident, "seems" to be the cause of the

cervical disk rupture, was equivocal.   In that note he merely

agreed with Dr. Wood's unfounded and unexplained opinion regarding

causation.    Dr. Sutherland did not explain the significance of his

October 24, 1996 office note in which he referenced Cook's July

1996 accident that resulted in neck pain that did not resolve

before the October 20, 1996 accident.   Additionally, Dr.

Sutherland did not explain the significance of Cook's visit to the

emergency room just weeks before October 20, 1996, where he


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presented with similar symptoms.    Where medical opinions are based

upon an incomplete or inaccurate medical history, the commission

is entitled to conclude that those opinions are of little

probative value.   See Clinchfield Coal Co. v. Bowman, 229 Va. 249,

251-52, 329 S.E.2d 15, 16 (1985); see also Sneed v. Morengo, Inc.,

19 Va. App. 199, 205, 450 S.E.2d 167, 171 (1994) ("Whenever a

physician's diagnosis flows from an assumption that rests upon a

faulty premise, such as misinformation provided by a claimant, the

commission may refuse, and often will be required to refuse, to

attribute any weight to that opinion.").

     Accordingly, we cannot find that the claimant's evidence

proved that the disability to his neck was causally related as a

matter of law to the October 20, 1996 accident in which he struck

his head on the roof of the mine.    We affirm the commission's

decision.

                                                            Affirmed.




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