                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Frank


ROBERT SHARP
                                             MEMORANDUM OPINION*
v.   Record No. 0715-00-4                         PER CURIAM
                                               AUGUST 15, 2000
K B R CORPORATION AND
 ASSURANCE COMPANY OF AMERICA


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Kathleen G. Walsh, on brief), for appellant.

             (William S. Sands, Jr.; Duncan and Hopkins,
             P.C., on brief), for appellees.


     Robert Sharp (claimant) contends that the Workers’

Compensation Commission erred in finding that he failed to prove

that his right shoulder problems were a compensable consequence

of his April 30, 1997 left shoulder injury.     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.

     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).

Unless we can say as a matter of law that claimant’s evidence

sustained his burden of proof, the commission’s findings are

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
binding and conclusive upon us.   See Tomko v. Michael’s

Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     In holding that claimant's evidence failed to sustain his

burden of proof, the commission found as follows:

               There is no credible direct testimony
          from the claimant . . . suggesting that he
          performed any deleterious physical activity
          with, or suffered any injury to his right
          shoulder as a direct consequence of his left
          shoulder injury. There was no evidence of
          strenuous overcompensation, nor of
          subsequent injury resulting from the
          performance of tasks with his right arm and
          shoulder that he might ordinarily have
          performed with the left. . . .

               The only activity to which the claimant
          attempts to attribute his right shoulder
          problems is physical therapy after his
          second surgical procedure. However, there
          is no evidence that such activity involved
          movement that the claimant would not
          otherwise have performed. Further, there
          are no contemporaneous medical records
          corroborating the claimant's testimony on
          this point. Noticeably, the physical
          therapist recorded that the claimant had
          full range of motion in the right shoulder
          at the time, and there is no report of
          increased right-sided complaints as a result
          of the therapy.

               . . . Significantly, none of the
          claimant's physicians have attributed his
          right shoulder problems to his participation
          in physical therapy. The only medical
          evidence comes from Dr. [Robert P.]
          Nirschl. . . . [However,] [h]e does not
          identify what, if any, role the left arm
          played in the right arm's injury, nor did
          the claimant testify regarding overuse of
          his right shoulder. While [Dr. Nirschl]
          "did not disagree" with the "concept" that
          the left shoulder condition "probably"
          played a role in the right shoulder

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            problems, this opinion is equivocal, and
            suggests that it was not arrived at
            independently, but at the suggestion of
            counsel.

                 . . . The claimant and his wife
            testified that "everything happened" at the
            time of the accident on April 30, 1997, that
            he had experienced problems with his right
            arm "from day one," and only that his right
            arm felt worse after physical therapy. They
            both testified that they informed Dr.
            [Robert] DeBlasi and Dr. Nirschl regarding
            his right shoulder complaints on numerous
            occasions before June of 1998. However,
            these assertions are completely unsupported
            by the doctor's contemporaneous treatment
            notes.

     The commission's factual findings are supported by the

record.    In its role as fact finder, the commission was entitled

to give little probative weight to claimant's testimony that his

right shoulder problems began while undergoing physical therapy

in 1998.    This testimony was not corroborated by any evidence in

the record, medical or otherwise, and it was in direct

contradiction to the testimony of claimant and his wife that his

right shoulder problems began on the day of the April 1997

accident.   It is well settled that credibility determinations

are within the fact finder's exclusive purview.    Goodyear Tire &

Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437

(1987).    In addition, in light of the equivocal nature of Dr.

Nirschl's opinions and the lack of any medical evidence to

support them, the commission was entitled to give those opinions

little probative weight.   "Medical evidence is not necessarily


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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).

     Based upon this record, we cannot find as a matter of law

that claimant's evidence sustained his burden of proof.

Accordingly, the commission's findings are binding and

conclusive upon us on appeal.

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

                                                          Affirmed.




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