                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bumgardner, Kelsey and Senior Judge Hodges


WHOLE FOODS MARKET, INC. AND
 CONTINENTAL CASUALTY COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 3216-02-3                         PER CURIAM
                                                APRIL 8, 2003
SOTIRIOS PETRAKIS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Thomas E. Dempsey; Semmes, Bowen & Semmes,
             P.C., on brief), for appellants.

             (Gregory P. Perigard; Burgess, Kernbach &
             Perigard, PLLC, on brief), for appellee.


     Whole Foods Market, Inc. and its insurer (hereinafter

referred to as "employer") contend the Workers' Compensation

Commission erred in finding that Sotirios Petrakis (claimant)

proved he remained totally disabled after October 19, 2000 as a

result of his compensable July 21, 2000 injury by accident.

Upon reviewing the record and the parties' briefs, we conclude

that this appeal is without merit.     Accordingly, we summarily

affirm the commission's decision.     Rule 5A:27.

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

to the prevailing party below.     R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Factual findings made by the commission 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).

     In reversing the deputy commissioner's finding and ruling

that claimant proved he was entitled to temporary total

disability benefits after October 19, 2000, the commission found

as follows:

               As for disability, Dr. [Michael] Trahos
          has opined that the claimant has been unable
          to work since he began treating the claimant
          in October 2000. Although Dr. [Neil]
          Kahanovitz was not willing to restrict the
          claimant from work, he recommended a second
          opinion. Dr. Trahos then began treating the
          claimant and opined that he was totally
          disabled. Dr. Trahos opined on June 17,
          2001, that the claimant should not return to
          work "until his condition improves." Thus,
          we believe that the claimant presented
          current evidence that was not contradicted
          that he was totally disabled at the time of
          the hearing. Moreover, he has continuously
          suffered from the same symptoms since the
          accident.

               The deputy commissioner was not
          persuaded by Dr. Trahos' opinion because he
          was not an authorized physician. Dr. Trahos
          was providing current treatment to the
          claimant, however, and was in a good
          position to opine as to his disability.
          Moreover, although the evidence did not show
          that Dr. Kahanovitz was unwilling to
          continue to treat the claimant or was
          providing improper treatment, Dr. Kahanovitz
          agreed that the claimant might benefit from
          treatment with another physician. There was
          no evidence that Dr. Trahos provided
          inadequate treatment or was unable to
          provide an accurate and reasoned opinion.
          Moreover, his opinion was based on
          additional EMG studies. Finally,
                            - 2 -
          Dr. Kahanovitz did not opine that the
          claimant was able or unable to work. Thus,
          Dr. Trahos' opinion was not contradicted.
          We find that the claimant established
          continuing disability . . . .

(Citation omitted.)

     Dr. Trahos' medical records and opinions constitute

credible evidence to support the commission's findings.    As fact

finder, the commission weighed the medical evidence and accepted

Dr. Trahos' opinion regarding claimant's disability.    In doing

so, the commission articulated its reasons for accepting

Dr. Trahos' opinion.   "The fact that there is contrary evidence

in the record is of no consequence if there is credible evidence

to support the commission's findings."     Wagner Enters., Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

Furthermore, "[i]n 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."   Id.

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

                                                           Affirmed.




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