                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judge Bumgardner and
            Senior Judge Hodges


MAWIA H. MOHAMED
                                             MEMORANDUM OPINION*
v.   Record No. 1105-01-4                         PER CURIAM
                                              SEPTEMBER 4, 2001
MARRIOTT INTERNATIONAL, INC. AND
 INSURANCE COMPANY OF THE STATE
 OF PENNSYLVANIA


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (David Rosenblum; Rosenblum & Rosenblum,
             L.L.C., on brief), for appellant.

             (John C. Duncan, III; Duncan and Hopkins,
             P.C., on brief), for appellees.


     Mawia H. Mohamed (claimant) contends that the Workers'

Compensation Commission erred in finding that he failed to prove

that his disability from December 7, 1999 through March 20,

2000, excluding the period of February 7, 2000 to February 20,

2000, was causally related to his July 26, 1998 compensable

injury by accident.     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.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On appeal, we view the evidence in the light most favorable

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

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

Unless we can say as a matter of law that claimant's evidence

sustained his burden of proof, the commission's findings are

binding and conclusive upon us.     See Tomko v. Michael's

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     In denying claimant's change-in-condition application, the

commission found as follows:

          The claimant sustained a compensable
          accident in 1998 from which he completely
          recovered. For over one year he did his
          regular work which involved heavy lifting,
          did not need any medical treatment and he
          testified he was asymptomatic.

                On February 4, 1999, he felt back pain
          after he lifted ten or eleven heavy pieces
          of luggage. Dr. [Lewis B.] Eberly examined
          him and found a radiculopathy on the
          claimant's left side. In 1998, the
          radiculopathy was in the claimant's right
          side.

               Dr. Eberly has not said the claimant's
          current problems were caused by the 1998
          accident. He wrote the claimant had a
          "recurrent" radiculopathy but never
          identified if the recurrence was caused by
          the 1998 accident or the 1999 heavy lifting.
          There is no claim for the 1999 accident.

               Without medical testimony of a causal
          relationship between the original injury and
          the back problems precipitated by the
          December 4, 1999, lifting incident, the
          claimant has failed to sustain his burden of
          proving causation to a reasonable medical
          probability.


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     "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).   As fact finder, the commission was

entitled to weigh the medical evidence.    It did so and

reasonably inferred that Dr. Eberly's medical records did not

contain a persuasive opinion regarding causation.

     In light of claimant's recovery from the initial injury in

1998, the one-year gap in medical treatment between that injury

and the 1999 lifting incident, and the lack of any persuasive

opinion from Dr. Eberly regarding causation, we cannot find as a

matter of law that claimant's evidence sustained his burden of

proving a causal connection between his current disability and

his compensable 1998 injury by accident.

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

                                                           Affirmed.




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