                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Salem, Virginia


RICKY A. MILLER
                                             MEMORANDUM OPINION * BY
v.   Record No. 1176-01-3           CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                NOVEMBER 20, 2001
ISLAND CREEK COAL COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          D. Edward Wise, Jr. (Arrington, Schelin &
          Herrell, P.C., on brief), for appellant.

          Michael F. Blair (Lisa Frisina Clement; Penn
          Stuart, on brief), for appellee.


     Ricky A. Miller (claimant) contends the Workers'

Compensation Commission (commission) erred in terminating his

temporary total disability benefits from Island Creek Coal

Company (employer).    Specifically, claimant argues employer's

change-in-condition application is barred by the doctrine of res

judicata, or, in the alternative, the evidence is insufficient

and does not support the commission's decision to terminate

claimant's benefits.    Finding no error, we affirm.

                               I.   FACTS

     We view the evidence in the light most favorable to the

party prevailing below.     See Westmoreland Coal Co. v. Russell,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999).    The

commission's factual findings will be upheld on appeal if

supported by credible evidence.     See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

"The fact that there is contrary evidence in the record is of no

consequence."     Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,

894, 407 S.E.2d 32, 35 (1991).

        So viewed, claimant, an electrician, sustained a

compensable injury on January 31, 1998.    Employer accepted the

claim, and benefits were paid accordingly.    Claimant was

released to return to full duty work June 15, 1998.      However,

claimant chose to retire at that time rather than return to

work.    The commission entered an award for temporary total

disability benefits covering January 31, 1998 through June 15,

1998.

        On February 2, 1999, claimant returned to Dr. Alain Desy,

his treating physician, with complaints of continued lumbar

pain.    Dr. Desy opined, "[T]here is no history of recent trauma

or injury to his back.    It seems that he never was free of

symptoms.    I do believe that the symptoms are all related to the

initial lumbar injury he sustained while working in the mines

. . . ."    Dr. Desy concluded the claimant was unable to work due

to his compensable work injury.    Based on Dr. Desy's medical

report, employer voluntarily reinstated benefits and the



                                 - 2 -
commission issued an award for temporary total disability

benefits beginning February 2, 1999.

     On June 2, 1999, employer sent claimant to Dr. William

McIlwain for an independent medical evaluation.    Dr. McIlwain

opined that claimant's "current medical condition as a result of

his injury is improved."   However, he also said claimant

exhibited "symptom magnification and positive distraction tests"

that prevented him from determining if claimant was temporarily

totally disabled.

     Dr. Desy reviewed Dr. McIlwain's report and "basically

agree[d]" with the recommendations of Dr. McIlwain.    Claimant

treated with both physicians from June 1999 to June 2000.    In a

letter to the carrier dated March 7, 2000, Dr. McIlwain stated

"[I]t is my feeling that [the claimant's] findings on both

physical examination as well as imaging studies are consistent

with continuing symptoms of spinal stenosis.    This pre-existed

his industrial injury."    Dr. Desy reviewed Dr. McIlwain's letter

and responded "I don't agree with that finding [of spinal

stenosis] since I never had any clinical evidence of spinal

stenosis initially and after following Mr. Miller for two years.

By reviewing Dr. McIlwain's evaluation of June 1999, I don't

have any clinical findings or signs pointing at the possibility

of spinal stenosis."

     Employer filed a change-in-condition application based on

the March letter from Dr. McIlwain.     Claimant argued that res

                                - 3 -
judicata barred the commission's re-litigation of the earlier

award reinstating benefits in February.     The commission found

that the doctrine of res judicata was inapplicable and that the

employer met its burden of proof on the change-in-condition

application and terminated benefits.

                          II.   RES JUDICATA

     Claimant first contends employer's change-in-condition

application is barred by the doctrine of res judicata because it

asked the deputy commissioner to "re-litigate" the issue of

causation of claimant's symptoms.    We disagree.

     "A final judgment based on a determination by the

commission on the issue of causation conclusively resolves the

claim as to that particular injury.      Thereafter, absent fraud or

mistake, the doctrine of res judicata bars further litigation of

that claim."    AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391

S.E.2d 879, 881 (1990) (citing K & L Trucking Co. v. Thurber, 1

Va. App. 213, 219, 337 S.E.2d 299, 302 (1985)).

     Claimant contends that the holding in Ruebush requires

reversal of the commission; however, Ruebush is distinguishable

from the instant case.   We held in Ruebush that prior

determinations of causation cannot be re-litigated.     That

holding does not prevent employers from challenging the

relationship of a current disability to the compensable work

injury.   In Ruebush, the employee filed two change-in-condition

applications.   The commission denied the first application

                                 - 4 -
because it lacked medical documentation.   The commission awarded

benefits on the second application incorporating by reference

all prior opinions.   Employer argued that a change-in-condition

application did not allow the commission to re-adjudicate its

prior decision on causation.   The Supreme Court agreed and set

forth the distinction between employer and employee

applications.

           [The difference between an employer's
           application for termination of benefits
           based on a change in condition and an
           employee's application for reinstatement of
           disability benefits is that in an employer's
           change of condition application] the only
           question is whether the employee's prior
           condition of work incapacity has changed;
           the question of causal connection is not an
           issue. On the other hand, when an employee
           files an application for reinstatement of
           disability benefits, two questions arise:
           (1) has there been a change in the
           employee's capacity to work; (2) if so, is
           the change due to a condition causally
           connected with the injury originally
           compensated.

King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148

(1984).   Accordingly, employer, by filing a change-in-condition

application after the issuance of an award, had to prove that

claimant's prior work incapacity changed and was no longer

related to the work injury.

     Pursuant to Code § 65.2-708 1 an employer may, at any time

after the injury, file a change-in-condition application.


     1
       Code § 65.2-708 provides in pertinent part: A. Upon its
own motion or upon the application of any party in interest, on

                               - 5 -
"Where . . . causal connection between an industrial accident

and disability has been established by the entry of an award, an

employer has a right to apply for termination of benefits upon

an allegation that the effects of the injury have fully

dissipated and the disability is the result of another cause."

Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d

687, 690 (1985).

     The voluntary reinstatement of benefits by the employer and

the issuance of an award by the commission memorializing the

voluntary reinstatement of benefits does not forever bar the

employer from filing a change-in-condition application

challenging the relationship of the compensable injury to the

claimant's current medical condition.   See id.   See also

Code § 65.2-708(A).   Applying this standard to the instant case,

employer was not re-litigating the cause of claimant's earlier

work-related disability.   Rather, it relied on Dr. McIlwain's

assessment that claimant's current condition was unrelated to

his earlier compensable injury and was a result of age-related

spinal stenosis.   Thus, we hold the doctrine of res judicata

does not apply.




the ground of a change in condition, the Commission may review
any award and on such review may make an award ending,
diminishing or increasing the compensation previously
awarded . . . .

                               - 6 -
                  III.   SUFFICIENCY OF THE EVIDENCE

       Claimant next contends that no credible evidence supports

the commission's decision to terminate his benefits and the

employer failed to meet its burden of proof.

       "The employer bears the burden of proving by a

preponderance of the evidence the allegations contained in its

application for a change in condition."     Westmoreland Coal, 31

Va. App. at 19-20, 520 S.E.2d at 841 (citing Pilot Freight

Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d

570, 572 (1970)).   In general, the commission will give greater

weight to the treating physician's opinion over a non-treating

physician.    See Pilot Freight, 1 Va. App. at 439, 339 S.E.2d at

572.   "'The probative weight to be accorded [medical] evidence

is for the Commission to decide; and if it is in conflict with

other medical evidence, the Commission is free to adopt that

view "which is most consistent with reason and justice."'"

Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d

267, 269 (2000) (quoting C.D.S. Services v. Petrock, 218 Va.

1064, 1070, 243 S.E.2d 236, 241 (1978)).

       In the instant case, the commission was "more persuaded by

Dr. McIlwain's well-reasoned opinion . . . than . . . Dr. Desy's

less well-explained opinion to the contrary."    In reviewing the

evidence, the commission found "Dr. McIlwain's testimony

specifically differentiated between a pre-existing symptomatic

stenoic condition and symptoms attributable to the claimant's

                                 - 7 -
industrial injury."   Further, the commission stated "Dr.

McIlwain's opinion is consistent with the uncontradicted

evidence that the claimant was released to return to his regular

work without restriction by Dr. Desy in June 1998, that he went

nearly eight months without additional medical treatment for any

back pain and that the recurrence of his symptomatology did not

result from any specific aggravation of his back."   The record

supports the commission's finding that the claimant's disability

was not related to his compensable injury, and we hold there is

credible evidence to support the commission's decision.

     For the foregoing reasons, the decision of the commission

is affirmed.

                                                          Affirmed.




                               - 8 -
