                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judges Frank and Clements


MARCUS ANTHONY SMALLS
                                             MEMORANDUM OPINION*
v.   Record No. 0478-03-4                         PER CURIAM
                                                JUNE 17, 2003
BELL CORPORATION OF ROCHESTER/
 BELL GROUP, INC. AND
 TRAVELERS INDEMNITY COMPANY
 OF ILLINOIS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

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

             (Francis G. Marrin; Law Offices of Roger S.
             Mackey, on brief), for appellees.


     Marcus Anthony Smalls (claimant) contends the Workers'

Compensation Commission erred in finding that he failed to prove

that (1) he could not return to his pre-injury work without

restrictions after April 30, 2001; and (2) his medical treatment

and disability after April 29, 2001 were causally related to his

compensable October 16, 2000 injury by accident.     Upon reviewing

the record and the parties' briefs, we conclude that this appeal

is without merit.     Accordingly, we summarily affirm the

commission's decision.     Rule 5A:27.




     * 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.    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

binding and conclusive upon us.    See Tomko v. Michael's

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

     In ruling that the evidence proved that claimant could

return to his pre-injury work without restrictions by April 30,

2001 and that he failed to prove that his medical treatment and

disability after April 29, 2001 were causally related to his

compensable October 16, 2000 injury by accident, the commission

found as follows:

          [B]oth Dr. [Neil] Kahanovitz and
          [Dr. Ian A.] Wattenmaker repeatedly opined
          that [claimant] displayed subjective
          complaints that could not be supported by
          objective findings. On February 21, 2001,
          Dr. Kahanovitz reported that the claimant's
          complaints were "completely inconsistent
          with his primarily subjective complaints."
          He also relied on the FCE [Functional
          Capacities Evaluation] results, which
          revealed symptom magnification. Similarly,
          Dr. Wattenmaker described the lack of
          correlation between a back injury and the
          claimant's abnormal physical findings.
          Dr. Wattenmaker observed a functional
          overlay component and found no objective
          injury that prevented the claimant from
          working.

               Furthermore, Drs. Kahanovitz and
          Wattenmaker viewed a videotape of the
          claimant performing various lifting and
          bending activities without difficulty.
                             - 2 -
          Based upon this videotape and the lack of
          objective findings, both orthopedic surgeons
          determined that after April 30, 2001, he
          could return to work without restrictions.
          Additionally, on September 5, 2001,
          Dr. [Wayne C.] Lindsey agreed with
          Drs. Kahanovitz and Wattenmaker that the
          claimant could perform regular duty.

               This evidence also supports the finding
          that the claimant failed to prove that
          medical treatment and disability after April
          29, 2001, were causally related to the
          industrial accident. He did not receive
          medical treatment for several months. Then,
          an MRI scan taken on September 13, 2001,
          revealed a small disc extrusion at the L5-S1
          level contacting the left S1 nerve root
          sleeve. Dr. [Eugene A.] Eline[, Jr.]
          attributed this condition to the industrial
          accident. However, Dr. Kahanovitz disputed
          a causal relationship between the claimant's
          current condition and the work-related
          injury. He persuasively explained that:

               There is a significant change in
               the appearance of the MRI and if
               the injury had caused [the
               claimant's] current symptoms there
               would be no change from the
               previous MRI from December 2000.
               Therefore a separate and distinct
               independent event may have caused
               the [claimant's] current
               symptomatology but since there is
               a distinct difference in the MRI
               of 2000 and 2001 I cannot relate
               the current symptoms to the prior
               symptoms and/or injury of
               10-16-2000.

     The medical records and opinions of Drs. Kahanovitz,

Wattenmaker, and Lindsey, coupled with the FCE and the

videotape, amply support the commission's findings that claimant

could return to work without restrictions by April 30, 2001 and

                             - 3 -
that his medical treatment and disability after April 29, 2001

were not causally related to his compensable injury by accident.

"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, 215 (1991).   As fact finder, the commission weighed the

medical evidence, accepted the opinions of Drs. Kahanovitz and

Wattenmaker, and rejected Dr. Eline's opinion.   "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).

     Because the medical evidence was subject to the

commission's factual determination, we cannot find as a matter

of law that claimant's evidence sustained his burden of proof.

Accordingly, we affirm the commission's decision.

                                                          Affirmed.




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