                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


MICHAEL EUGENE DURNEY
                                             MEMORANDUM OPINION*
v.   Record No. 3039-00-2                         PER CURIAM
                                                APRIL 24, 2001
WINN'S HAULING, INC. AND
 COMMERCIAL UNION INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Wesley G. Marshall, on brief), for
             appellant.

             (Susan Moloney Smith; Midkiff, Muncie & Ross,
             P.C., on brief), for appellees.


     Michael Eugene Durney (claimant) contends that the Workers'

Compensation Commission erred in finding that he failed to prove

that his post-August 1997 disability was causally related, in

whole or in part, to his compensable October 29, 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).


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 benefits to claimant for disability after August

1997, the commission found as follows:

          [T]he evidence fails to establish any
          disability incurred by the claimant after
          August 1997 is causally related to his
          October 29, 1996, accident. The medical
          records through August 1997 reflect that the
          claimant had a herniated disc at L5-S1 and
          had pain in his right leg that correlated
          with this condition. The claimant received
          no treatment from August 15, 1997, until
          August 10, 1998. On August 10, 1998, the
          claimant experienced a lifting injury for
          which he was treated at the Henrico Doctors'
          Hospital emergency room. When he returned
          to Dr. [Robert F.] DeBlasi on August 13,
          1998, he had pain in his left leg. A
          subsequent MRI showed that the disc problem
          at L5-S1 was, in fact, smaller than it was
          in March of 1997. In addition, this was on
          the opposite side from the claimant's
          symptoms. He did have a slight disc bulge
          at L4-5. Likewise, on August 7, 1999, an
          MRI showed a herniated nucleus pulposis at
          L4-5 and a very small herniated nucleus
          pulposis on the right at L5-S1. Dr. DeBlasi
          in his August 16, 1999, letter specifically
          stated that the claimant's old herniated
          disc was on the right at L5-S1. The
          moderate herniated disc on the left at L4-5
          was new. Dr. DeBlasi has made no statement
          concerning a causal relationship between the
          claimant's October 1996 accident and his
          treatment after August 1997. The medical
          evidence is not sufficient for the claimant
          to prove that his treatment after August
          1997 is a continuation of the October 1996
          accident.


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     The commission's findings are supported by the medical

records.   Contrary to claimant's assertions on appeal, no

medical evidence proved that his disability after August 1998

was due to a re-occurrence and aggravation of his earlier

October 29, 1996 compensable injury by accident.

     Based upon the one-year gap in medical treatment from

August 1997 through August 1998, the lifting incident on August

10, 1998, the new leg symptoms and new medical findings after

the August 10, 1998 incident, and the lack of any persuasive

medical evidence of a causal connection between claimant's

post-August 1997 disability and his compensable injury by

accident, 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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