                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia


UNINSURED EMPLOYER'S FUND
                                           MEMORANDUM OPINION * BY
v.   Record No. 1338-99-3                 JUDGE SAM W. COLEMAN III
                                                MARCH 14, 2000
TONY ALLEN NICHOLS


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Patricia H. Quillen, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          John J. Beall, Jr., Senior Assistant Attorney
          General, on brief), for appellant.

          William H. Fralin, Jr. (Jolly, Place,
          Fralin & Prillaman, P.C., on brief), for
          appellee.


     The Uninsured Employer's Fund appeals the Workers'

Compensation Commission's decision denying the Fund's application

to terminate benefits based upon a change in condition.

The Fund alleged in its application that the claimant was no

longer disabled from the industrial accident and that his residual

disability was unrelated to the accident.   The Fund argues that

the commission erred in finding that it failed to prove that as of

August 27, 1998, Tony Allen Nichols was no longer disabled as a




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
result of the compensable injury.    We disagree and affirm the

commission's decision.

                              BACKGROUND

     Nichols was employed as a mechanic by Joseph Wright, trading

as Wright's Lawn Service and Automotive Repair (Wright).   On April

20, 1996, while working for Wright, Nichols was repairing a

vehicle's carburetor when the carburetor backfired and caused

flash burns over twenty percent of Nichols' body, particularly his

right upper arm.   Nichols was treated at the University of

Virginia Medical Center Burn Center where he underwent skin grafts

to the right upper extremity and forearm and to the right hand and

three fingers of the right hand.    Nichols filed a claim for and

was awarded temporary total disability benefits.   Upon finding

that Wright was uninsured, the commission ordered the Fund to

satisfy the award.

     In June 1997, Nichols underwent a functional capacities

evaluation (FCE) which revealed that he was limited in his ability

to lift with his left hand.   Also, he was fifty percent deficient

in right hand grip strength and was unable to sustain a strong

right hand grip for more than two to three seconds at one time.

He was found to be limited in carrying things with his right hand,

working overhead, crawling, and performing activities requiring

fine motor coordination of his right hand.   If Nichols returned to

work, the evaluator opined that he would require tools with


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built-up handles and that he would be unable to perform activities

requiring sustained or strong repetitive right hand grip strength.

     On July 21, 1997, the Fund filed an Application for Hearing,

alleging that Nichols was released to return to his pre-injury

work by Dr. J. Samuel Mitchener, III, a plastic and reconstructive

surgeon who had treated Nichols after the accident.   Dr. Mitchener

had also previously treated Nichols in 1995 for a blunt trauma

injury to the dorsum of his right hand, sustained while working

for another employer.   In his report, Dr. Mitchener concluded that

Nichols was able to return "to full work," but he noted that

Nichols "may have difficulties finding employment given the

deficits documented in the FCE."   Dr. Mitchener opined that

Nichols could perform "many types" of automotive and lawnmower

repairs, despite the fact that he had not been provided a detailed

job description of Nichols' pre-injury work duties.   The

commission denied the Fund's application.

     The Fund filed a second Change in Condition Application,

alleging that Nichols was no longer disabled as a result of the

industrial accident and, except for a residual disability from a

prior unrelated blunt trauma injury, that Nichols would have been

able to return to his pre-injury work as of August 27, 1998.    The

Fund based its application upon Dr. Mitchener's report dated

August 27, 1998.




                               - 3 -
     The only evidence in the record delineating Nichols'

pre-injury job duties is his affidavit stating that, as a shop

mechanic and supervisor, he was required routinely to perform many

tasks involving fine manipulation of objects with both hands, many

tasks requiring a strong right hand grip for sustained periods,

lifting heavy objects from floor to waist and carrying objects

with both hands, and crawling and working overhead.   Prior to the

industrial accident, Nichols never required the use of tools with

"built-up handles" to perform his work.

     In June 1998, the Fund set forth in a letter to Dr. Mitchener

the pre-injury job duties as described by Nichols in his

affidavit.   Dr. Mitchener had no other information detailing

Nichols' pre-injury job duties.   The Fund requested that Dr.

Mitchener evaluate Nichols and respond to several queries.

     Nichols was examined by Dr. Mitchener, and in an August 27,

1998 letter, Dr. Mitchener opined that Nichols was not disabled

due to the burn injury; he stated that "it appears that any

disability . . . may be related to the blunt trauma injury of

September 22, 1995."   Dr. Mitchener "strongly suspected" that if

Nichols had only the burn injury, he would be able to return to

his pre-injury status as an auto mechanic and supervisor.    Dr.

Mitchener further noted that Nichols had grip strength problems,

but Dr. Mitchener attributed the problems "almost entirely" to the

blunt trauma injury rather than the burn injury.   Dr. Mitchener


                               - 4 -
opined that Nichols would not likely obtain pre-injury status and

that he would have permanent restrictions based on the lack of

complete extension of the right small finger.    Dr. Mitchener noted

that Nichols also demonstrated signs of peripheral nerve

irritation and/or compression of unknown etiology.    Dr. Mitchener

opined that the pain Nichols experiences in the right upper

extremity was either related to ulnar nerve compression at the

right elbow or median nerve compression at the wrist and

recommended that Nichols obtain a complete neurological

evaluation.

     The commission found that the Fund failed to prove that

Nichols was able to perform his pre-injury work.    The commission

noted that Nichols was able to perform his pre-injury work prior

to the industrial accident despite the pre-existing decreased

range of motion in the right fifth digit due to the 1995 blunt

trauma injury.    The commission found that Nichols' inability to

perform his pre-injury work is evident from Dr. Mitchener's August

27, 1998 report in which Dr. Mitchener noted that Nichols still

experiences grip strength problems, even though Dr. Mitchener

attributed the problems "almost entirely to the earlier blunt

trauma injury."    The commission found that the Fund had failed to

prove that the peripheral neuropathy, which prevented Nichols from

performing a number of significant pre-injury work duties, was not

related to the industrial accident.     The commission noted that the


                                - 5 -
neuropathy was not present before the industrial accident and that

it was to an area of the body where Nichols sustained extensive

burns and skin grafts.

                                ANALYSIS

        "In an application for review of an award on the ground of

change in condition, the burden is on the party alleging such

change to prove his allegations by a preponderance of the

evidence."    Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.

435, 438-39, 339 S.E.2d 570, 572 (1986).    On appeal, we view the

evidence in the light most favorable to Nichols, the prevailing

party.     See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211,

212, 390 S.E.2d 788, 788 (1990).     We accept the commission's

factual findings when they are supported by credible evidence.

See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989).

        The commission found that the Fund failed to prove by a

preponderance of the evidence that Nichols' residual incapacity

was not related to the industrial accident.    The commission stated

that:

             [T]he pre-existing [blunt trauma] injury was
             to the dorsum of the right hand. In the
             industrial accident the claimant suffered
             partial and full thickness burns
             circumferentially of the right upper
             extremity from the hand to the shoulder.
             Dr. Mitchener opined that the claimant
             exhibited symptoms of peripheral nerve
             compression at the elbow or wrist, an area
             encompassed by the burn injury and not by

                                 - 6 -
           the pre-existing injury . . . . [I]t appears
           that these symptoms may be tied in some
           fashion to the claimant's assertion that he
           cannot now grip with his right hand.

The commission noted further that because Dr. Mitchener

recommended referral to a neurologist to determine the cause of

Nichols' peripheral neuropathy in his right upper extremity, the

commission would not presume that the condition, which had not

existed prior to the burn injury, was not related to the burn

injury.   The commission noted that Nichols' blunt trauma injury

occurred before Nichols began working for Wright and that nothing

in the record indicates that Nichols' pre-injury work performance

was affected by that injury.   No evidence exists to indicate that

he experienced grip strength deficiencies, that he was unable to

perform all the functions of the job, or that he required the use

of special tools.

     The commission articulated legitimate reasons for giving

little probative weight to Dr. Mitchener's opinions.   "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).

Contrary to the Fund's contention, the burden of proof was on the

Fund, whose change in condition application alleged that Nichols'

residual incapacity was unrelated to his industrial accident, to

prove that the disability resulting from the irritation or




                               - 7 -
degeneration of the nerves in Nichols' right hand was not caused

by the industrial accident.

     Here, the commission found that the Fund failed to carry its

burden of proof in that Dr. Mitchener's evidence did not persuade

them that Nichols' residual incapacity, specifically the lack of

grip strength in the right hand, was unrelated to the industrial

accident.   Admittedly, Dr. Mitchener opined that Nichols' lack of

grip strength was unrelated to the industrial accident and that it

probably was caused by "peripheral nerve irritation and/or

compression, etiology unknown."   The commission, however, was not

required to accept Dr. Mitchener's conclusory opinion as to

causation, nor was the commission required to conclude from Dr.

Mitchener's opinion that because the etiology of the nerve

irritation or degeneration was unknown, that the Fund had met its

burden of proving that the disability was not caused by the

industrial accident.    Quite simply, the commission found that the

Fund's evidence, which consisted of little more than one doctor's

opinion that the cause of Nichols' nerve irritation or

degeneration was unknown, was not convincing, and therefore, not

sufficient to persuade it that Nichols' residual disability was

unrelated to the burns and skin grafts that this twenty-year-old

laborer had suffered.

     Because the evidence supports the commission's holding that

the Fund did not prove that Nichols' disability was unrelated to


                                - 8 -
his compensable injury, we affirm the commission's denial of the

Fund's application for termination of benefits.

                                                         Affirmed.




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