                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


SUGGS CARPET INSTALLATION AND
 HARTFORD CASUALTY INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 3472-01-2                         PER CURIAM
                                                 MAY 7, 2002
JOSEPH WAYNE SUGGS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (S. Vernon Priddy III; P. Dawn Bishop; Sands
             Anderson Marks & Miller, on brief), for
             appellants.

             (Gerald G. Lutkenhaus; The Law Office of
             Gerald G. Lutkenhaus, on brief), for
             appellee.


     Suggs Carpet Installation and its insurer (hereinafter

referred to as "employer") contend the Workers' Compensation

Commission erred in finding that Joseph Wayne Suggs (claimant)

proved (1) he sustained a change-in-condition causally related

to his compensable January 5, 1995 injury by accident; (2)

medical treatment rendered to him after October 1, 1996 was

causally related to his compensable injury by accident; and (3)

Dr. Michael Decker's narcotics therapy constituted reasonable

and necessary medical treatment.     Upon reviewing the record and

the parties' briefs, we conclude that this appeal is without


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
merit.   Accordingly, we summarily affirm the commission's

decision.   Rule 5A:27.

                      I.   Change-in-Condition

     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).

"General principles of workman's compensation law provide that

'in 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 his 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) (quoting Pilot Freight

Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d

570, 572 (1986)).

     Code § 65.2-101 defines a change-in-condition as "a change

in physical condition of the employee as well as any change in

the conditions under which compensation was awarded, suspended,

or terminated which would affect the right to, amount of, or

duration of compensation."   In AMP, Inc. v. Ruebush, 10 Va. App.

270, 391 S.E.2d 879 (1990), we recognized that "[t]he Supreme

Court held in Mace [v. Merchants Delivery Moving Storage, 221

Va. 401, 270 S.E.2d 717 (1980),] that 'a change in an attending

physician's opinion concerning an employee's ability to resume

work meets the criteria detailed in Code § 65.1-8 [now Code

65.2-101].'   It is clear that a 'change in "condition" includes
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the "capacity to work."'"   AMP, Inc., 10 Va. App. at 273, 391

S.E.2d at 880-81 (citations omitted).

     In granting claimant's application, the commission found as

follows:

                The primary issue is whether the
           claimant has shown that his condition has
           deteriorated since 1997. We find that it
           has. Dr. [Steven M.] Fiore, an orthopedist
           who first saw the claimant in July 1997,
           testified that the claimant has been totally
           disabled since that time. Dr. Decker, a
           pain management specialist who began
           treating the claimant in April 1998, stated
           that the claimant has been totally disabled.
           Dr. Decker made the point that he was able
           to observe the claimant nine hours a day in
           his pain clinic, and it was clear to him
           that the claimant could not work. In
           addition to extensive personal observation
           of the claimant, both Drs. Fiore and Decker
           point to objective evidence of discogenic
           pain based on the discogram. Another
           objective indicator of the claimant's
           worsening condition is the fact that
           Dr. Decker directed him to use crutches,
           whereas previously he had used a cane.
           Dr. [Sidney H.] Schnoll supports the
           opinions of Drs. Fiore and Decker, arguing
           that an orthopedic surgeon such as
           Dr. [Robert S.] Adelaar is not qualified to
           direct or assess treatment of chronic pain
           syndrome. Dr. Schnoll explained the
           claimant's "drug-seeking" behavior as a
           result of his undermedication by his
           original treating physicians.

                We find the opinions of these
           physicians more persuasive than those of
           Drs. Adelaar, [Walter S.] Davis, [Howard G.]
           Stern and [Douglas A.] Wayne for several
           reasons. First, Drs. Fiore and Decker are
           more familiar with the patient than are the
           other doctors. Second, we note that the
           claimant was able to successfully run his
           own business and engage in heavy physical
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           labor, and to maintain a stable family life,
           until the age of 39, when the motor vehicle
           accident occurred. The claimant was not
           addicted to narcotics prior to the accident.
           As Dr. Schnoll pointed out, even if the
           claimant were considered a narcotics addict
           rather than a "pseudoaddict" as Dr. Schnoll
           believes, this condition impairs his ability
           to work and is related to the accident.
           Dr. Adelaar concedes that the claimant is in
           pain, and his condition is complicated by
           his narcotic regime.

                We do not agree with the deputy
           commissioner's reasoning that the fact that
           the claimant believes that he has always
           been totally disabled since the accident
           refutes his argument for a change in
           condition, which is supported by the medical
           evidence.

     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).   The medical records and opinions of Drs. Fiore, Decker,

and Schnoll provide ample credible evidence to support the

commission's finding that claimant proved he sustained a

change-in-condition causally related to his compensable injury

by accident, entitling him to an award of temporary total

disability benefits beginning March 22, 1997.   Their medical

records and opinions established that claimant's disability

status changed and his condition worsened since 1997. 1   As fact


     1
       We note that claimant's and his wife's opinions that he
had been totally disabled since the accident, did not bar his
claim under Massie v. Firmstone, 134 Va. 450, 114 S.E. 652
(1922). "The Massie doctrine applies only to a party litigant's
statements of fact that are within the litigant's own knowledge,
                              - 4 -
finder, the commission was entitled to accept the opinions of

these physicians and to reject the contrary opinions of

Drs. Adelaar, Davis, Stern, and Wayne.     "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).   Moreover, "[i]n determining whether credible

evidence exists, the appellate court does not retry the facts,

reweigh the preponderance of the evidence, or make its own

determination of the credibility of the witnesses."     Wagner

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991).   Because credible evidence supports the commission's

findings, we will not disturb them on appeal.

                        II.   Medical Treatment

     On appeal, employer argues that the commission erred in

holding it responsible for claimant's post-October 1, 1996

medical treatment on the ground that Dr. Kennedy S. Daniels

opined on October 1, 1996 that claimant's disability and medical

treatment resulted from his degenerative disc disease and not

from any identifiable trauma.     Employer contends Dr. Daniels'

opinion collaterally estopped the commission from finding that

claimant's medical treatment after October 1, 1996 was causally

related to his compensable injury by accident.


and not to statements   of opinion." Braden v. Isabell K.
Horseley Real Estate,   Ltd., 245 Va. 11, 16, 425 S.E.2d 481, 484
(1993). In addition,    claimant and his wife testified that his
condition changed and   worsened over time.
                                - 5 -
     First, although employer argued to the commission that

Dr. Daniels' opinion supported a finding that the cost of

claimant's various medical treatments after October 1996 was not

causally related to his compensable injury by accident, employer

did not argue collateral estoppel before the commission.

Accordingly, we will not consider that specific argument on

appeal.   See Rule 5A:18.

     Secondly, the commission, as fact finder, was entitled to

weigh the medical evidence, to reject Dr. Daniels' opinion, and

to accept the opinions of claimant's current treating

physicians, Drs. Fiore and Decker, that his continuing

disability and medical care were causally related to his

compensable injury by accident. 2   Their opinions provide credible

evidence to support the commission's finding, which is binding

and conclusive upon us on appeal.

               III.   Dr. Decker's Medical Treatment

     In rejecting employer's argument that Dr. Decker's

treatment of claimant's pain syndrome was not reasonable or

necessary, the commission found as follows:

           Both Dr. Decker and Dr. Schnoll believe that
           appropriate use of narcotics has been

     2
       We also note that in his October 21, 1996 deposition,
Dr. Daniels opined that claimant's current condition was caused
by a combination of his degenerative disc disease and his motor
vehicle accidents. Moreover, in its May 2, 1997 opinion, the
issue before the commission was whether claimant had proven he
was totally disabled after March 28, 1996. The extent of
claimant's disability, not causation, was the issue determined
by the commission.
                              - 6 -
          necessary. Dr. Davis stated that a trial of
          narcotics was appropriate but since
          [claimant's] condition did not improve it
          should be discontinued. Clearly, several of
          the doctors who previously treated the
          claimant were alarmed by the fact that the
          claimant was seeking narcotic pain
          medication, but they were not pain
          management specialists. We are reluctant to
          substitute our opinion for the opinion of
          the treating physicians.

     The medical records and opinions of Drs. Decker and

Schnoll, a pain management specialist and pharmacologist,

respectively, provide credible evidence to support the

commission's findings.   Therefore, those findings are binding

and conclusive upon us on appeal.   "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,

12 Va. App. at 894, 407 S.E.2d at 35.

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

                                                           Affirmed.




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