                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


OTIS L. TINSLEY, JR.
                                             MEMORANDUM OPINION*
v.   Record No. 0728-00-3                         PER CURIAM
                                              FEBRUARY 27, 2001
VIRGINIA MIRROR COMPANY, INC. AND
 NATIONAL SURETY CORPORATION


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Otis L. Tinsley, pro se, on brief).

             (Christopher M. Kite; Frith, Anderson &
             Peake, P.C., on brief), for appellees.


     Otis L. Tinsley (claimant) contends that the Workers'

Compensation Commission erred in finding that he failed to prove

that back surgery proposed by Dr. Joel Singer was causally

related to his compensable June 11, 1996 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.

     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


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
binding and conclusive upon us.   See Tomko v. Michael's

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

     In ruling that claimant failed to prove that the proposed

surgery was causally related to his compensable injury, the

commission found as follows:

          [W]e note Dr. [Matthew W.] Yates' MRI
          report, that shows a degenerative disc
          condition that is essentially unchanged from
          the previous June 21, 1996, study. Dr.
          Singer in his initial medical report,
          advised that the claimant had a new
          herniated disc at L4-5 and a recurrent
          herniated disc at L5-S1. His report of
          April 30, 1998, indicated that the claimant
          did not remember when this happened. This
          report makes no statement as to the causal
          connection to the industrial accident. Dr.
          Singer, however, in his May 13, 1998, letter
          written in response to a call from claimant,
          indicates that he meant in his previous
          report to say that the claimant did not have
          a new injury but a recurrent pain secondary
          to workers' compensation related herniated
          disc.

               Based on the totality of the record, we
          cannot find that the doctor's subsequent
          statement sufficiently causally relates the
          claimant's need for surgery to his workers'
          compensation accident within the requisite
          degree of certainty. At best, the doctor
          indicates that the claimant is having
          recurrent pain secondary to a herniated
          disc. In view of the doctor's earlier note
          indicating that the claimant had a new
          herniated disc at L4-5, and without further
          explanation for his change in opinion to say
          there was no new injury, we cannot find that
          the claimant has established the requisite
          causal connection between the proposed
          surgery and the workers' compensation
          accident.


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     In its role as fact finder, the commission was entitled to

weigh the medical evidence.    The commission did so and

articulated its reasons for giving little probative weight to

Dr. Singer's inconsistent and ambiguous opinions.    In light of

these reasons, the commission was entitled to conclude that Dr.

Singer's opinions did not constitute sufficient evidence to

prove that the proposed surgery was causally related to

claimant's compensable injury.    "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).

     Absent Dr. Singer's opinions, no evidence proved a causal

connection between the proposed surgery and claimant's

compensable June 11, 1996 injury by accident.    Accordingly, we

cannot find as a matter of law that claimant's evidence

sustained his burden of proof.

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

                                                             Affirmed.




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