                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


DEBORAH LYNN HINKLE

v.   Record No. 1947-96-4                      MEMORANDUM OPINION *
                                                   PER CURIAM
ROCCO FARM FOODS/ROCCO                          JANUARY 7, 1997
 ENTERPRISES, INC. AND
 HOME INDEMNITY COMPANY


                                          FROM THE VIRGINIA
WORKERS' COMPENSATION COMMISSION
           (Jerry O. Talton, on briefs), for appellant.

           (Cathleen P. Welsh; Wharton, Aldhizer &
           Weaver, on brief), for appellees.



     Deborah Lynn Hinkle appeals a decision of the Workers'

Compensation Commission denying her an award of temporary total

disability benefits after February 19, 1995.    Hinkle contends

that the commission erred in finding that she failed to prove

that she was disabled after February 19, 1995 as a result of her

compensable August 26, 1993 injury by accident.    Finding no

error, we affirm.

     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).

     So viewed, the evidence established that Hinkle sustained a

compensable right arm injury on August 26, 1993.     After the

accident, Hinkle continued to work, but experienced intermittent
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
right hand and arm symptoms.    On January 31, 1994, Hinkle sought

treatment for these symptoms from Dr. Mark A. Rhodes, an

orthopedic surgeon.    On January 31, 1994, Dr. Rhodes noted by way

of history Hinkle's work-related accident.      Dr. Rhodes further

noted subjective complaints and diagnosed traumatic lateral

epicondylitis of the right elbow and extensor tendinitis

secondary to acute strain of the right forearm and wrist.      Dr.

Rhodes treated Hinkle's injuries conservatively.      Hinkle returned

to Dr. Rhodes on March 14, 1994 and June 14, 1994.
        On August 9, 1994, claimant sought emergency room treatment

for an unrelated right thumb injury sustained at work on that

date.    After this accident, claimant was released to return to

work on August 22, 1994.    On August 24, 1994, Hinkle returned to

Dr. Rhodes for treatment of the thumb injury.      Dr. Rhodes did not

note any complaints by Hinkle of right arm symptoms.      Hinkle was

also treated by Dr. Rhodes on September 16, 1994, and she

telephoned his office on September 28 and October 5, 1994.        On

those occasions, Hinkle complained of right thumb pain, but did

not mention right arm or hand symptoms.

        On November 2, 1994, Dr. Rhodes noted a flare-up of Hinkle's

right elbow epicondylitis, as well as ongoing right thumb

symptoms.    On November 10, 1994, Dr. Rhodes imposed restrictions

on Hinkle's use of her right arm and performed surgery on her

right elbow on December 8, 1994.       Thereafter, Dr. Rhodes released

Hinkle to return to full-duty on February 20, 1995.      Hinkle




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sought treatment from Dr. Rhodes on March 2 and March 20, 1995.

After March 20, 1995, Hinkle did not seek any medical treatment

for right arm symptoms until August 9, 1995, when she returned to

Dr. Rhodes upon her lawyer's request.   On that date, Dr. Rhodes

noted Hinkle's continuing symptoms and prescribed medication, but

he did not mention disability.

     On August 31, 1995, Dr. Rhodes answered "yes" to the

following question posited by Hinkle's counsel:
          Has Deborah Hinkle been unable to perform the
          full duties of her preinjury employment since
          on or before April 13, 1995 and continuing
          through the present due to the accident of
          August 26, 1993?

     Based upon this record, the commission found that Hinkle

failed to prove disability after February 19, 1995 causally

related to her compensable right arm injury.   In light of Dr.

Rhodes' office notes through March 20, 1995, which indicated only

subjective complaints and did not mention disability or

restrictions, the commission gave little weight to claimant's

testimony that she was laid off by employer in April 1995 due to

disability caused by her right arm symptoms.   In addition, the

commission gave no weight to Dr. Rhodes' response to Hinkle's

counsel's question, finding as follows:
          This statement, however, must be read in
          light of the fact that Dr. Rhodes did not see
          the claimant between March 20 and August 9,
          1995. Moreover, his office notes for those
          two dates make no reference to disability,
          and this opinion apparently comes after the
          fact. There is no evidence, medical or
          otherwise, to the contrary.




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

sustained her burden of proving causally-related disability after

February 19, 1995, the commission's findings are binding and

conclusive upon us.     Tomko v. Michael's Plastering Co., 210 Va.

697, 699, 173 S.E.2d 833, 835 (1970).

        Dr. Rhodes' release of Hinkle to full-duty without

restrictions as of February 20, 1995 supports the commission's

decision that she failed to prove disability after February 19,

1995.    In light of the lack of any medical treatment by Dr.

Rhodes between March 20 and August 9, 1995 for Hinkle's right arm

symptoms and the lack of any reference to disability in Dr.

Rhodes' office notes for this same period of time, the commission

was entitled to reject Dr. Rhodes' August 1995 opinion.

"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).    In addition, in light of the lack of medical

evidence establishing causally-related disability, the

commission, as fact finder, was free to give little weight to

Hinkle's testimony.

        While we note Dr. Rhodes' March 20, 1995 suggestion that

Hinkle seek other employment, we also note that Dr. Rhodes did

not treat Hinkle between March 20, 1995 and August 9, 1995, nor

did he state prior to August 31, 1995 that Hinkle was disabled

from performing her pre-injury employment.



                                   4
     Absent Dr. Rhodes' August 1995 opinion, there is no medical

evidence to support a finding of causally-related disability

after February 19, 1995.   Accordingly, we cannot find as a matter

of law that Hinkle's evidence sustained her burden of proof.

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

                                                   Affirmed.




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Benton, J., dissenting.

     In finding that Hinkle failed to prove causally-related

disability after February 19, 1995, the commission rejected Dr.

Rhodes' August 31, 1995 undisputed opinion to the contrary.    The

commission's finding is not supported by the evidence.

     On March 20, 1995, Hinkle returned to Dr. Rhodes with

continued discomfort in her right elbow.   Dr. Rhodes noted that

Hinkle "had gone back to work on March 6, had pain and was

attempting to try other positions which did not help."   Dr.

Rhodes diagnosed Hinkle as suffering from persistent recurrent

right lateral epicondylitis, possible radial tunnel syndrome and

tendinitis of the right elbow.   He opined that the constant

repetitive nature of Hinkle's employment prevented her from

obtaining relief from her elbow pain.   He suggested that Hinkle

seek other employment and recommended that she contact vocational

rehabilitation.
     The commission failed to take into account Dr. Rhodes' March

20, 1995 recommendation that Hinkle should seek alternative

employment.   Dr. Rhodes' opinion established that he believed

Hinkle could not perform the full duties of her pre-injury

employment as of March 20, 1995 as a result of her compensable

right arm injury.   On August 9, 1995, Dr. Rhodes noted that

Hinkle continued to have discomfort in her right elbow and had

been unable to perform her pre-injury job or an alternative job

provided by employer.   No medical evidence between March 20, 1995




                                 6
and August 9, 1995 supports the commission's implicit finding

that Hinkle was able to perform the duties of her pre-injury

employment.

     Dr. Rhodes' medical records and opinions are undisputed.     As

the treating physician, Dr. Rhodes' opinions should have been

given great weight by the commission.   Pilot Freight Carriers,

Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986).

Therefore, the record provides no basis upon which the

commission could properly reject Dr. Rhodes' August 31, 1995

opinion that Hinkle could not perform the full duties of her pre-

injury employment since on or before April 13, 1995 and

continuing.
     Because the undisputed medical evidence, as well as Hinkle's

testimony, established that Hinkle was disabled from performing

her pre-injury employment after April 13, 1995, I would reverse

the commission's decision.




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