                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judges Benton and Humphreys


DANNY EUGENE THOMPSON, JR.
                                             MEMORANDUM OPINION*
v.   Record No. 2723-02-3                         PER CURIAM
                                              FEBRUARY 25, 2003
BRANCH HIGHWAYS AND
 PENNSYLVANIA MANUFACTURERS
 ASSOCIATION INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Rhonda L. Overstreet; Lumsden, Overstreet &
             Hansen, on brief), for appellant.

             (Monica Taylor Monday; Mary Beth Nash; Gentry
             Locke Rakes & Moore, on brief), for
             appellees.


     Danny Eugene Thompson contends the Workers' Compensation

Commission erred in finding that he failed to prove he was

totally disabled after November 21, 2000.     Upon reviewing the

record and the parties' briefs, 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 prevailing party below.     R.G. Moore Bldg. Corp. v.

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




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
ruling that claimant failed to prove he was totally disabled

after November 21, 2000, the commission found as follows:

               Immediately after the injury,
          Dr. [James E.] Thompson excused the claimant
          from his work duties. Dr. [Darrell F.]
          Powledge intermittently removed him from
          work and also released him to light duty.
          Dr. Thompson's office notes from the fall of
          2000 fail to mention the claimant's work
          capacity. However, on January 31, 2001,
          Dr. Thompson issued a disability slip, which
          excused the claimant from work from July 21
          through November 21, 2000. The claimant
          admitted in his deposition taken on January
          31, 2001, that he was capable of light duty.

               When Dr. Thompson evaluated the
          claimant on April 17, 2001, he issued no
          restrictions. On July 6, 2001, the claimant
          complained that he could not perform
          sedentary work. Dr. Thompson agreed that
          the claimant remained disabled from his
          preinjury employment. He did not conclude
          that he was disabled from all work.

               Based on this medical evidence, we are
          not persuaded by Dr. Thompson's December
          2001 opinion that the claimant had been
          totally disabled since the accident. This
          opinion was rendered months after his last
          examination in July 2001 and contradicted
          prior conclusions, which were recorded when
          he saw the claimant. Moreover, during
          Dr. Thompson's deposition in January 2002,
          he reiterated that he removed the claimant
          from work from July 21 through November 21,
          2000. He agreed that performing a sedentary
          job would be difficult for the claimant, but
          he did not state that the claimant could not
          perform sedentary work. Furthermore,
          Dr. Thompson advised that he could find no
          objective reasons for the claimant's
          continued knee pain.

     "Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing."
                              - 2 -
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991).   As fact finder, the commission weighed

the medical evidence and articulated its reasons for giving

little probative weight to Dr. Thompson's December 3, 2001

opinion regarding claimant's disability status.   The commission

noted the six-month gap between Dr. Thompson's last examination

of claimant on July 6, 2001 and his December 3, 2001 opinion.

When Dr. Thompson last examined claimant, he opined that

claimant could not perform his pre-injury job, but he did not

opine that claimant was totally disabled from all work.

     In his January 9, 2002 deposition, Dr. Thompson

acknowledged the distinction between stating that claimant could

not perform his pre-injury job versus stating that he is totally

disabled.   Dr. Thompson also testified in his deposition that

prior to December 3, 2001, he had not rendered any opinion that

claimant was totally disabled and that the only period for which

he had removed claimant from all work was from July 21, 2000

through November 21, 2000.   Furthermore, Dr. Thompson admitted

that he could not find any objective reason for claimant's

continued knee pain.

     The medical records support the commission's factual

findings.   In light of these medical reports and the

commission's reasoning, the commission was entitled to conclude

that Dr. Thompson's December 3, 2001 opinion did not constitute

sufficient evidence to prove that claimant was totally disabled
                              - 3 -
after November 21, 2000.   Because the medical evidence was

subject to the commission's factual determination, we cannot

hold as a matter of law that claimant's evidence sustained his

burden of proving continuing total disability after November 21,

2000.   See Tomko v. Michael's Plastering Co., 210 Va. 697, 699,

173 S.E.2d 833, 835 (1970).   Accordingly, we affirm the

commission's decision.

                                                           Affirmed.




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