                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Senior Judge Overton


PEPSI-COLA BOTTLERS OF WASHINGTON,
 D.C., INC. AND LUMBERMENS MUTUAL
 CASUALTY COMPANY
                                              MEMORANDUM OPINION *
v.   Record No. 2299-98-4                         PER CURIAM
                                              FEBRUARY 16, 1999
JOSEPH W. KANE


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Robert J. Lowe, Jr.; Kimberly A. Karcewski;
           Lowe & Associates, on briefs), for
           appellants.

           (Julie H. Heiden; Koonz, McKenney, Johnson,
           DePaolis & Lightfoot, on brief), for
           appellee.


     Pepsi-Cola Bottlers of Washington, D.C., Inc. and its

insurer (hereinafter referred to as "employer") contend that the

Workers' Compensation Commission ("commission") erred in denying

its request for a change in Joseph W. Kane's ("claimant")

treating physicians.   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.

           The commission has previously set forth
           several grounds upon which it will order a
           change in an employee's treating physician:
           inadequate treatment is being rendered; it
           appears that treatment is needed by a
           specialist in a particular field and is not
           being provided; no progress being made in

     *
      Pursuant to Code § 17-1.413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
           improvement of the employee's health
           condition without any adequate explanation;
           conventional modalities of treatment are not
           being used; no plan for treatment for
           long-term disability cases; and failure to
           cooperate with discovery proceedings ordered
           by the Commission.

Powers v. J.B. Constr., 68 O.I.C. 208, 211 (1989) (construing

Code § 65.1-88 (now Code § 65.2-603)).   The commission's

construction of the Act is entitled to great weight on appeal.

See City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337 S.E.2d

901, 903 (1985).

     In denying employer's application, the commission found as

follows:

           [T]he record establishes that Dr. [Leo]
           Goldhammer prescribed recognized conservative
           treatment, that he administered and ordered
           appropriate testing, that he procured
           consultations, and that he worked in
           conjunction with Dr. [Charles B.] Jackson,
           who obviously had no problem with Dr.
           Goldhammer's treatment plan. Moreover, in
           his recent medical report, Dr. [Anthony] Debs
           expressed no recommendations for treatment,
           and in fact felt that maximum medical
           improvement was reached back in 1993. The
           claimant's condition is obviously a
           deteriorating one as is to be expected with a
           degenerative spinal condition, and both
           Doctors Goldhammer and Jackson have addressed
           this in their recommendations. No physician
           at this time is recommending surgery.
                We find no basis to order a change in
           treating physicians, as Dr. Goldhammer has
           not endorsed the suggestion of a functional
           capacity evaluation and did not immediately
           address a question about such an evaluation.
           Even Dr. Debs has not recommended a
           functional capacity evaluation, but rather,
           only raised it as a possibility. Dr.
           Goldhammer has given sound reasons for his
           belief that the claimant should not
           physically have to undergo it. . . .



                               - 2 -
          Moreover, Dr. Goldhammer's failure to
          immediately respond to the insurer's inquiry
          about the functional capacity evaluation does
          not constitute a basis to order a change in
          treating physicians, when the record
          otherwise reveals that he has promptly
          forwarded his reports following evaluations,
          and he already completed a functional
          capacity evaluation. Further, there were
          other avenues to obtain this information
          either through interrogatories or a
          deposition.

     Viewing the evidence in the light most favorable to

claimant, who prevailed before the commission, we find that the

commission's factual findings are fully supported by the medical

records of Drs. Goldhammer and Jackson.   Based upon those factual

findings, the commission could reasonably conclude that Dr.

Goldhammer, in conjunction with Dr. Jackson, has adequately

treated claimant's condition and has devised an appropriate

treatment plan.

     Because the medical records were subject to the commission's

factual determination, we cannot find as a matter of law that

employer's evidence met its burden of proof.   Accordingly, we

affirm the commission's decision.

                                                          Affirmed.




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