                     COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia


JERAL R. ROBBINS
                                          MEMORANDUM OPINION * BY
v.   Record No. 0354-97-3               JUDGE JAMES W. BENTON, JR.
                                           SEPTEMBER 30, 1997
PENN LINE, INC. and
 HOME INDEMNITY COMPANY


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Paul L. Phipps (Lee & Phipps, P.C., on
            brief), for appellant.
            Monica L. Taylor (Thomas H. Miller; Gentry,
            Locke, Rakes & Moore, on brief), for
            appellees.



      Jeral R. Robbins contends that the Workers' Compensation

Commission erred in ruling that his change in condition

application was barred by res judicata.    Robbins also contends

that the commission erred in ruling that he had not proved a

change in condition related to his injury by accident.    For the

reasons that follow, we affirm the commission's denial of

compensation benefits.

      Robbins sustained an injury to his back on January 31, 1995

when he fell on ice at work.    At the evidentiary hearing on

Robbins' original claim for compensation, his employer, Penn

Line, Inc., stipulated that Robbins suffered an injury by

accident and defended on the ground that Robbins was not

incapacitated for work after March 1995.    The evidence proved
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that Robbins was treated in the hospital emergency room and then

received treatment from Dr. Patrick Molony.   Dr. Molony referred

Robbins to an orthopaedist and a neurosurgeon.

     The orthopaedist diagnosed a mild sprain of the thoracic and

lumbar spine.    After review of test reports, the orthopaedist

released Robbins to return to light duty work in March.    Because

of continuing complaints of pain, Robbins revisited the

orthopaedist in late March and was informed that he could return

to light duty work on April 3.   In May 1995, Dr. Molony opined

that Robbins was unable to return to work because of back pain

and noted that Robbins "needs neurosurgical evaluation."
     Robbins was then tested and examined by several

neurosurgeons.    In August 1995, Dr. Daniel Robertson reported "no

indication for neurosurgical intervention," noted that Robbins

had "reached maximum medical improvement," and transferred

Robbins back to Dr. Molony.   Dr. Molony referred Robbins to

another neurosurgeon, Dr. Ken Smith, who diagnosed lumbar

spondylosis, low back pain and bilateral par defect.   Dr. Smith

referred Robbins to Dr. John Marshall.

     In December 1995, Dr. Marshall reviewed Robbins' medical

records, examined Robbins on two occasions and ordered further

testing.   He diagnosed Robbins as suffering sensory peripheral

polyneuropathy.   Dr. Marshall reported that he was "not convinced

that the current symptomatology represents continued sequela from

a 1/31/95 fall" and that "[t]he peripheral polyneuropathy . . .




                                  2
probably would not stem from the original fall."   Dr. Marshall

also reported that testing would be required to "further define

the extent of the [polyneuropathy] pathology."   Dr. Marshall

noted that Robbins was not disabled from work as a result of his

fall in January 1995 and stated that any restrictions from work

resulted from causes unrelated to Robbins' fall.   He opined that

"[t]he peripheral polyneuropathy . . . probably would not stem

from the original fall as the extensive diagnosis involves

pathological processes which occur independent of acute trauma."
     Based on the evidence at the hearing, the deputy

commissioner found that Robbins "was incapacitated for work as a

consequence of this accident through December 15, 1995 when Dr.

Marshall determined that [Robbins'] ongoing disability was not

related to the January 31, 1995 accident."   Thus, the deputy

commissioner awarded Robbins temporary total disability benefits

from February 1, 1995 until December 15, 1995.   Robbins did not

seek review of that ruling.

     On May 2, 1996, Robbins filed an application for a change in

condition and sought benefits beginning on March 21, 1996 and

continuing thereafter.   At the evidentiary hearing on this

application, Robbins testified that his pain had worsened since

January of 1996 and was constant.    Robbins testified that the

pain was in his back muscles, that he had received cortisone

injections for spasms he was having in his back, and that he

began using a walker because the use of his cane put too much




                                 3
pressure on his back.   Robbins also testified that he was being

treated for depression and anxiety caused by "the worrying and

the pressure."

     The evidence proved that Robbins had continued to be treated

by Dr. Molony for his physical ailments and, in addition, had

begun to visit Dr. B. Wayne Lanthorn, a psychologist.    Dr.

Lanthorn saw Robbins on April 12, 1996 and diagnosed Robbins as

having "Mood Disorder Due to Chronic Low Back Pain and

Limitations, With Depressive Features."   Dr. Lanthorn wrote a

letter on July 31, 1996 in which he opined that "Robbins'

psychiatric difficulties are a direct result and followed an

injury that occurred to him while working."   In August, Dr.

Molony also reported that "Robbins has been unable to work since

1-31-95 due to an injury on the job at that time."
     On August 6, 1996, Dr. Marshall reviewed Robbins' history,

including the reports of Dr. Molony and Dr. Lanthorn, and

examined Robbins again.   Dr. Marshall stated that he did "not

have any new recommendations from [his] 12/6 and 12/15/95

report[s]" and reiterated his opinion that Robbins' symptoms were

not all related to his work injury.

     Based on this evidence, the deputy commissioner made the

following findings:
          As Dr. Marshall's opinion as well as the
          opinion of Dr. Molony are essentially
          unchanged from their opinions previously
          expressed and considered in the February 6,
          1996 opinion, we conclude that their opinions
          do not establish a change in condition
          causally related to the January 31, 1995



                                 4
          accident. It was found in the previous
          opinion that [Robbins'] disability after
          December 15, 1995 was unrelated to the
          January 31, 1995 accident. It was found that
          [Robbins'] ongoing disability was
          attributable to causes other than the January
          31, 1995 accident. Since that opinion was
          not appealed, those findings are final and
          binding.

             . . . However, we do not believe that
          . . . the previous . . . decision would
          necessarily preclude finding a change in
          condition based on psychological opinion;
          however, in this case, Dr. Lanthorn's opinion
          is of little probative value since he was not
          provided with the medical records nor was he
          aware of the previous finding that [Robbins']
          disability after December 15, 1995 was caused
          by factors other than the January 31, 1995
          accident . . . . [Robbins'] claim must be,
          and it hereby is, denied.

The full commission affirmed that decision.

     "General principles of [workers'] compensation law provide

that '[i]n an application for review of any award on the ground

of change in condition, the burden is on the party alleging such

change to prove [the] allegations by a preponderance of the

evidence.'"   Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.

459, 464, 359 S.E.2d 98, 101 (1987) (citation omitted).    "Unless

we can say as a matter of law that the evidence submitted by

[Robbins] was sufficient to sustain his burden, then the

Commission's finding . . . is binding and conclusive upon us."
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d

833, 835 (1970).

     When the deputy commissioner rendered a decision following

the evidentiary hearing on Robbins' initial claim for



                                 5
compensation for his injury by accident, the deputy commissioner

resolved a conflict in the medical opinions.    Dr. Molony reported

that Robbins was disabled from employment and that his disability

was continuing.   However, Dr. Marshall reported that Robbins'

disability from work as caused by his injury by accident of

January 1995 had resolved as of December 15, 1995 and that

Robbins' continuing disability was not related to the January

1995 work-related injury.   The deputy commissioner accepted Dr.

Marshall's report and did not accept Dr. Molony's report.    An

issue raised by conflicting medical opinions is a factual matter

to be resolved by the commission.     City of Norfolk v. Lillard, 15

Va. App. 424, 429-30, 424 S.E.2d 243, 246 (1992).    Robbins did

not appeal that factual finding, which was adverse to his claim

that his disability was continuing.

     In his application for a change in condition, which

commenced the proceeding from which this appeal arises, Robbins

bore the burden of proving both that he suffered a change in

capacity to work and that the change was due to a condition

causally related to his compensable injury.     See AMP, Inc. v.

Ruebush, 10 Va. App. 270, 273-74, 391 S.E.2d 879, 881 (1990).

However, Dr. Molony's reports fail to account for the deputy

commissioner's unappealed factual finding that Robbins "was

incapacitated for work as a consequence of [the January 1995

work-related] accident through December 15, 1995 when Dr.

Marshall determined that [Robbins'] ongoing disability was not




                                 6
related to the January 31, 1995 accident."    Dr. Molony reported

in August 1996, that "Robbins has been unable to work since

1-31-95 due to an injury on the job at that time."   To the extent

that Robbins sought to use that report to contradict the deputy

commissioner's previous ruling that the disability that Robbins

suffered at December 15, 1995 was unrelated to his work, the

commission correctly ruled that the deputy commissioner's ruling

was res judicata.   See K & L Trucking Co. v. Thurber, 1 Va. App.

213, 218-20, 337 S.E.2d 299, 302-03 (1985).
     Furthermore, the evidence proved that on August 8, 1996

Dr. Marshall reviewed the reports of Dr. Molony's examination of

Robbins after January 1996, and the reports of Dr. Lanthorn's

treatment of Robbins after January 1996.   In addition, Dr.

Marshall examined Robbins.   Based upon his review of the medical

reports and his examination of Robbins, Dr. Marshall reported

that Robbins' low back pain had resolved prior to his December

15, 1995 report, that Robbins' spondylolysis was not connected to

his work-related injury, that the etiology of Robbins' sensory

peripheral polyneuropathy was undetermined, and that he had

nothing further to add to his earlier report.   The commission

again accepted Dr. Marshall's report and rejected Dr. Molony's

report concerning Robbins' injury.

     In addition, the deputy commissioner found from the evidence

that Dr. Lanthorn had not reviewed Robbins' medical records and

was unaware that the commission had ruled that Robbins'



                                 7
disability at December 15 was unrelated to his work injury.    On

review, the commission also found that Dr. Lanthorn's reports

noted that Robbins had nerve problems prior to his work-related

injury.   Dr. Lanthorn's reports simply failed to make a causal

connection between Robbins' work-related injury and his current

psychological condition.

     For these reasons, we hold that the evidence did not prove,

as a matter of law, that Robbins bore his burden of proving a

change in condition.   Accordingly, we affirm the decision.

                                                   Affirmed.




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