                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Retired Judge Duff ∗


WEIS MARKETS, INC. AND
 TRAVELERS INDEMNITY COMPANY OF ILLINOIS
                                             MEMORANDUM OPINION ∗∗
v.   Record No. 0106-01-4                         PER CURIAM
                                                 MAY 15, 2001
BARRY L. GREGORY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Jimese Pendergraft Sherrill; Pamela A.
             Kultgen; Siciliano, Ellis, Dyer & Boccarosse,
             on brief), for appellants.

             (Jerry O. Talton, Jr., on brief), for
             appellee.


     Weis Markets, Inc. and its insurer (hereinafter referred to

as "employer") contend that the Workers' Compensation Commission

erred in finding that Barry L. Gregory proved that he was

entitled to an award of temporary total disability benefits

after January 4, 1999 as a result of his October 6, 1998 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.

     ∗
       Retired Judge Charles H. Duff considered this case by
designation pursuant to Code § 17.1-400(D).
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
        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).

"Factual findings made by the commission will be upheld on

appeal if supported by credible evidence."     See James v. Capitol

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488

(1989).

        Gregory sustained an original back injury on April 6, 1993

while working for employer.    In April 1998, Dr. Virgil Balint,

Gregory's treating physician, released him to full duty.

        On October 6, 1998, Gregory felt a pop in his back while

lifting a large box at work.    The commission found that he

proved he sustained a new injury by accident on October 6, 1998.

Employer does not challenge that finding on appeal.

        After the October 6, 1998 back injury, Dr. Gregory Ford, an

orthopedist, treated Gregory and diagnosed him as suffering from

a recurrent lumbar strain.    Dr. Ford excused him from work in

October, November, and December 1998.    After that date, Dr.

Benjamin Rezba, Dr. Ford's partner, continued Gregory's medical

care.

        On January 4, 1999, at employer's request, Dr. Balint

examined Gregory.    Dr. Balint concluded that Gregory's objective

physical examination had not changed since he had treated

Gregory in 1998.    Dr. Balint opined that there was a discrepancy

between Gregory's excessive complaints and the objective

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examination.    Dr. Balint opined that Gregory could perform his

regular work duties.

        On January 25, 1999, Dr. Rezba released Gregory to light

duty.    On March 8, 1999, Dr. Rezba noted that Gregory continued

to work full duty, with a continuing diagnosis of lumbosacral

strain.    On April 28, 1999, Dr. Rezba re-imposed light duty

restrictions, noting back pain as well as symptom magnification.

On July 21, 1999, Dr. Rezba excused Gregory from work and

suggested a repeat MRI.    Dr. Rezba continued to keep Gregory off

from work in September 1999 and ordered a discogram.

        On December 14, 1999, Dr. Thomas Schuler began treating

Gregory at Dr. Rezba's request.    On that date, Dr. Schuler wrote

to Dr. Rezba noting that "[b]ased upon your diskography, there

is significant disk disruption at the L4-5 level."    Dr. Schuler

wrote that he needed to review Gregory's MRI and other studies

to determine whether "evidence of junctional breakdown" existed.

If so, Dr. Schuler stated that he would have to re-perform the

diskography to evaluate these levels before considering surgery.

        On March 1, 2000, Dr. Schuler interpreted a diskography he

performed.    Based upon the results of that test, Dr. Schuler

opined that the L3-4 level was consistent with Gregory's pain

and that he was a candidate for interbody fusion.

        On March 20, 2000, Dr. Rezba noted that Dr. Schuler had

been "able to do the 3-4 disc that I couldn't do and saw that

there was a large spur that was probably pushing the nerve to

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where we couldn't get around it."   Dr. Rezba recommended that

Gregory be referred to Dr. Schuler to go ahead with surgery.

     In response to questions from Gregory's counsel, Dr. Rezba

excused Gregory from all work since May 1999 as a result of the

October 6, 1998 accident.   Dr. Schuler also opined that Gregory

was totally disabled from all work since December 1999.

     On March 27, 2000, Dr. Balint wrote to employer's counsel

that "[t]hough this diskogram was performed by an extremely

qualified back surgeon, whom I know quite well, and the

diskogram was positive, it is still my opinion that the patient

is an extremely poor candidate for surgery."   Dr. Balint also

stated that when he last saw Gregory on October 27, 1999, his

back pain was related to degenerative arthritis, not the October

1998 injury.

     Based upon the results of the discograms, Drs. Rezba and

Schuler unequivocally opined that Gregory was totally disabled

as a result of the October 6, 1998 injury by accident.    Their

opinions provide credible evidence to support the commission's

finding that Gregory was entitled to an award of temporary total

disability benefits from October 8, 1998 through January 23,

1999 and from July 21, 1999 and continuing.

     The commission, as fact finder, was entitled to weigh the

medical evidence and to accept the opinions of Drs. Rezba and

Schuler, the treating physicians after Gregory's October 6, 1998

injury, and to reject the contrary view of Dr. Balint. "Medical

                               - 4 -
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).   Moreover, "[q]uestions 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).

The commission rejected Dr. Balint's opinion because he was not

the treating physician after the October 1998 accident.   When

Dr. Balint rendered his March 27, 2000 opinion, he had not seen

Gregory for a lengthy period of time.   Moreover, Dr. Balint did

not comment upon the issue of disability at that time.

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

                                                          Affirmed.




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