                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Baker, Elder and Fitzpatrick


DOUGLAS E. DAVIS

v.          Record No. 1908-94-1                  MEMORANDUM OPINION *
                                                       PER CURIAM
SAVILLE PENINSULA PRODUCE                              MAY 2, 1995
AND
MARYLAND CASUALTY COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            (Robert J. Macbeth, Jr.; Rutter & Montagna, on brief),
            for appellant.

          (P. Dawn Bishop; Sands, Anderson, Marks & Miller, on
     brief), for appellees.



     Douglas E. Davis (claimant) contends that the Workers'

Compensation Commission (commission) erred in finding that (1)

Saville Peninsula Produce (employer) met its burden of proving

that claimant was able to return to his pre-injury work as of

August 23, 1993, and (2) employer's October 12, 1993 change in

condition application was not barred by the doctrine of res
judicata.    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.        Rule

5A:27.

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

to the party prevailing below.     R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E. 788, 788 (1990).       Factual
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
findings of the commission will not be disturbed on appeal, if

based on credible evidence.     Hercules, Inc. v. Gunther, 13 Va.

App. 357, 361, 412 S.E.2d 185, 187 (1991).

        In reversing the deputy commissioner's decision and granting

employer's application, the commission accepted the August 23,

1993 opinion of Dr. Edward B. Butts, the treating neurosurgeon.

Dr. Butts opined that, as of that date, claimant could return to

his pre-injury work with no restrictions.    In rendering his

opinion, Dr. Butts examined claimant and ordered an MRI.    Dr.

Butts opined that the MRI showed some scar tissue and disc

degeneration, but did not show a recurrent disc herniation.      Dr.

Butts also took into account that scar tissue could occasionally

cause pain, that claimant had shown improvement following his

surgery, and that claimant had been given adequate rehabilitation

through work hardening.    Dr. Butts approved of a description of

claimant's pre-injury job submitted by employer, as well as a job

description submitted by claimant.     Dr. Butts' opinion

constitutes credible evidence to support the commission's

findings.
        The commission found that employer's October 12, 1993

application was not barred by the doctrine of res judicata.       The

October 12, 1993 application presented the issue of whether

claimant could return to his pre-injury work as of August 23,

1993.    This issue was not, and could not have been, previously

litigated and determined as to these parties.    Moreover, the




                                   2
October 12, 1993 application was based upon new evidence,

including Dr. Butts' August 23, 1993 examination of claimant, Dr.

Butts' review of the job descriptions, and the September 8, 1993

MRI.   Therefore, the commission did not err in finding that the

October 12, 1993 application was not barred by the doctrine of

res judicata.

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

                                                    Affirmed.




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