                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bumgardner and Senior Judge Baker


THURONDIE L. CHISHOLM
                                              MEMORANDUM OPINION *
v.   Record No. 0786-98-4                          PER CURIAM
                                                AUGUST 25, 1998
THE WASHINGTON POST AND
 GALLAGHER BASSETT SERVICES


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Robert A. Mordhorst; Mordhorst, Taweel &
           Adams, on brief), for appellant.
           (Charles F. Midkiff; Midkiff & Hiner, on
           brief), for appellees.



     Thurondie L. Chisholm ("claimant") contends that the

Workers' Compensation Commission ("commission") erred in denying

him an award of compensation benefits on the ground that he

failed to prove that he sustained more than seven days of

disability during the two-year period immediately following his

May 8, 1993 injury by accident.   Pursuant to Rule 5A:21(b), The

Washington Post ("employer") raises the additional question of

whether the commission erred in finding that claimant proved a

causal relationship existed between his May 8, 1993 back injury

and his subsequent medical treatment and uncompensated

disability.   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.     Rule

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
5A:27.

                        Disability Benefits

     On May 8, 1993, while working for employer as a paper

handler, claimant was removing paper rolls from a terminal and

placing them in two lanes.   After claimant placed a roll in a

lane, he stepped backwards to back down some steps.   A handrail

on the steps was missing and claimant fell backwards about three

to four feet, landing on his lower back.   On March 7, 1996,

claimant filed an application seeking wage loss benefits and

medical benefits.
     The commission held that because the employer did not file

the Employer's First Report of Accident until January 24, 1996

and claimant proved prejudice, the statute of limitations was

tolled and claimant's March 7, 1996 application was not

time-barred.   Employer does not challenge this finding on appeal.

     The commission further held that claimant was not entitled

to an award of disability benefits on the ground that he failed

to prove that he missed more than seven days from work during the

two years immediately following his May 8, 1993 injury by

accident.   Claimant contends that based upon this Court's holding

in Mayberry v. Alcoa Building Products, 18 Va. App. 18, 441
S.E.2d 349 (1994), he was not required to prove compensable

disability within two years after the date of his accident, but

only that he sustained some disability within two years after the




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accident.   We disagree. 1

     In Mayberry, this Court held that where an employee did not

file a timely application or demonstrate any disability during

the two-year period following the industrial accident, that

employee could not be awarded compensation for total disability

which occurred more than two years after the injury by accident.

 See id. at 20, 441 S.E.2d at 350.    We specifically held that

"[w]e affirm because Mayberry had no awardable work incapacity

within two years from the date of his accident."    Id. at 19, 441

S.E.2d at 349.   Compensation for work incapacity is not awardable

for the first seven calendar days of incapacity resulting from an

injury unless certain exceptions are met.    See Code § 65.2-509.

None of those exceptions apply in this case.

     Here, it was undisputed that claimant did not prove that he

sustained more than seven days of work incapacity during the

two-year period immediately following his accident.   Thus,

because claimant failed to prove that he incurred any awardable

disability during the two-year period following his accident, the

commission did not err in denying his request for compensation

benefits.

     1
      Claimant also argues that because the statute of
limitations was tolled, the period in which he was required to
prove compensable disability should also have been tolled until
employer filed the Employer's First Report of Accident. Claimant
did not raise this argument before the commission. Accordingly,
we will not address it for the first time on appeal. See Green
v. Warwick Plumbing & Heating Corp., 5 Va. App. 409, 413, 364
S.E.2d 4, 6 (1988); Rule 5A:18.




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                             Causation

     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).      "The

actual determination of causation is a factual finding that will

not be disturbed on appeal if there is credible evidence to

support the finding."   Ingersoll-Rand Co. v. Musick, 7 Va. App.

684, 688, 376 S.E.2d 814, 817 (1989).    "Questions raised by

conflicting medical opinions must be decided by the commission."
 Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d

231, 236 (1989).

     In ruling that claimant sustained his burden of proving a

causal relationship between his May 8, 1993 lower back injury and

his subsequent medical treatment and uncompensated disability,

the commission found as follows:
          The employer's Written Statement correctly
          points out that the medical records show the
          claimant had similar symptoms both before and
          after the accident, that, as also noted by
          the Deputy Commissioner, the claimant was
          less then accurate in his testimony about
          previous symptoms and that in the records of
          the nine doctors who treated the claimant,
          there are about five different causes stated
          for his injury.
               The Deputy Commissioner gave greater
          evidentiary weight to the fact that the
          claimant did not have radiating symptoms in
          his leg since 1987 and that three of the
          doctors attributed the need for surgery to
          the May 8, 1993, industrial accident.
          Against this close and inconsistent record,
          we AFFIRM the Deputy Commissioner's decision
          that the evidence preponderates in
          establishing the requisite causal connection.



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     "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, 214 (1991).   In its role as fact finder, the

commission was entitled to weigh the medical evidence, to accept

the opinions of Dr. Fraser C. Henderson, Dr. William Lauerman,

and Dr. Steven Taub, and to reject any contrary medical opinions.

The opinions and medical records of Drs. Henderson, Lauerman,

and Taub constitute credible evidence to support the commission's

decision.   "The fact that there is contrary evidence in the

record is of no consequence if there is credible evidence to

support the commission's finding."    Wagner Enters., Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

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

                                                          Affirmed.




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