                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia


DAVID BIRMINGHAM, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 0039-01-4          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                               JANUARY 15, 2002
CENTURY CONCRETE, INC. AND
 PENNSYLVANIA MANUFACTURER'S
 INDEMNITY INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            David R. Birmingham, Jr., pro se.

            Jennifer G. Tatum (Clarke, Dolph, Rapaport,
            Hardy & Hull, P.L.C., on brief), for
            appellees.


     David Birmingham, Jr. (claimant), contends the Workers'

Compensation Commission (commission) erred in its finding that

(1) his neck injury was not related to his February 26, 1997

compensable work injury and (2) there is no ongoing disability

related to his compensable hand and wrist injuries sustained

February 26, 1997. 1    Finding no error, we affirm the commission's

decision.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Claimant also contends he should be reimbursed for his
mileage. This issue is barred under Rule 5A:18. It was not
raised before the commission or addressed in any opinion and,
thus, was not preserved for appeal.
                               I.   FACTS

     We view the evidence in the light most favorable to the

employer, who prevailed below.      See Westmoreland Coal v. Russell,

31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999).     The commission's

factual findings are conclusive and binding on this Court when

those findings are based on credible evidence.      See James v.

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

488 (1989); Code § 65.2-706.    "The fact that there is contrary

evidence in the record is of no consequence."      Wagner Enters.,

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

     So viewed, claimant, a carpenter, sustained compensable

injuries to his wrists and hands, chest, and face when he fell

from a ladder on February 26, 1997.      Employer accepted the claim,

and benefits were paid accordingly.      Claimant treated with

Dr. Robert J. Snyder for his hand injuries.     Dr. Snyder performed

two carpal tunnel releases.    Claimant was eventually released to

return to light duty work.    He was later fired by employer for a

violation of the company drug policy, and his indemnity benefits

were terminated.   He moved to New York and failed to follow up

with Dr. Snyder.

     Claimant sought medical treatment in New York with Dr. R.J.

Mutty in January 1998 for his hand injuries.     Dr. Mutty referred

claimant for testing and then to a hand surgeon, Dr. Jon B.

Loftus.   Dr. Loftus stated "with regard to the pain, I don't

really know what is causing it without any other objective

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evidence and pathology."    He referred claimant to a pain clinic.

In August 1998, the pain clinic referred claimant to Dr. Arnold

A. Criscitiello for evaluation of complaints of neck pain.       In

September 1998, claimant was involved in a serious motor vehicle

accident in which the vehicle rolled over and the driver was

killed.    Claimant arrived at the emergency room complaining of

head and neck pain.    Also in September 1998, claimant agreed to a

settlement of a prior workers' compensation claim with a previous

employer, waiving his right to future medical benefits for a neck

injury that required surgery.

        Claimant then began treating with Dr. Criscitiello,

Dr. James W. Holsapple, and Dr. Warren T. Rinehart for his neck

pain.    Claimant gave a history to each of these physicians that

he had been injured and required C5-6 fusion in 1989, had been

involved in a motor vehicle accident in December 1993 in which he

fractured C3 and required a fusion at C6-7, underwent bilateral

carpal tunnel releases as a result of the February 1997 injury,

and, in September 1998, had been involved in the motor vehicle

accident.    Claimant also reported his neck pain began after the

February 1997 injury.    X-rays taken after the February 1997

injury show a non-union at the C6-7 fusion and degenerative

changes.    A CT scan after the serious September 1998 motor

vehicle accident shows a new herniation at C4-5.

        In May 1999, Dr. Snyder, his prior treating orthopedic

physician, reviewed the available medical information at the

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request of the employer and opined regarding claimant's neck

injury, "I can in no clear terms state that the patient's present

condition is at all related to his injury."

     Claimant filed applications December 11, 1998 and June 1,

1999 alleging his neck injury was a result of the February 26,

1997 compensable accident and a change in condition of his hand

injuries.   The deputy commissioner found the opinion of

Dr. Snyder "to be the most persuasive and most consistent with

reason and justice" and held claimant failed to prove (1) his

neck injury was a result of the February 26, 1997 accident and

(2) he had ongoing disability related to his hand injuries.    The

deputy commissioner specifically addressed claimant's credibility

in his opinion.

            The Commission had the opportunity to view
            the demeanor of the claimant and does not
            find his testimony to be candid or credible.
            He is an admitted felon, and we are deeply
            concerned about his use and abuse of
            prescription drugs and marijuana. His
            employer warned him to refrain from drug
            usage and when he did not, that was the
            reason for his termination for cause. He had
            been involved in numerous industrial and
            automobile accidents. He had numerous
            financial settlements for prior injuries,
            including a settlement where he waived all
            benefits for a neck problem, similar to the
            present claim. In addition, he did not begin
            to pursue the alleged neck problems from this
            accident until after the settlement of his
            prior neck claim and after his initial claim
            for benefits in this case had been rejected
            by the Full Commission and the Court of
            Appeals.




                                - 4 -
     Claimant appealed the decision to the full commission.       The

commission held that claimant's neck injury was not a result of

the February 26, 1997 accident and any disability resulting from

that injury was not compensable and that he failed to prove he

had any ongoing disability related to his hand and wrist

injuries.

     The commission also cited the deputy commissioner's finding

regarding the claimant's credibility.

            We recognize that the claimant has testified
            that he regularly told all of his physicians
            about this neck pain and problems following
            the accident. It is apparent that the
            claimant mentioned to at least two of his
            physicians, at some point in time, that his
            neck was bothering him. However, none of his
            physicians found these complaints significant
            enough to memorialize until nearly a year and
            a half after the accident. The Deputy
            Commissioner questioned the veracity of the
            claimant's testimony, citing his own
            observation of the claimant's demeanor at the
            hearing, his felony conviction and history of
            drug abuse, as well as claimant's prior
            settlement of a similar neck injury claim
            whereby he waived medical benefits. We find
            no fault in these findings.

     The claimant appealed from that decision.

                   II.   SUFFICIENCY OF THE EVIDENCE

     We view the evidence in the light most favorable to the

party prevailing below in determining whether credible evidence

exists to support the necessary factual findings.      Crisp v.

Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339

S.E.2d 916, 916 (1986).    On appeal, factual findings of the



                                 - 5 -
commission will not be disturbed if based on credible evidence.

Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276,

279, 348 S.E.2d 876, 877 (1986).

     "Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing."

Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991).   "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 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

witnessess."   Wagner Enters., Inc. v. Brooks, 12 Va. App. 809,

894, 407 S.E.2d 32, 35 (1991).

     "'The probative weight to be accorded [medical] evidence is

for the Commission to decide; and if it is in conflict with other

medical evidence, the Commission is free to adopt that view

"which is most consistent with reason and justice."'"

Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d

267, 269 (2000) (quoting C.D.S. Services v. Petrock, 218 Va.

1064, 1070, 243 S.E.2d 236, 241 (1978)).

     In the instant case, credible evidence supports the

commission's decision that claimant failed to prove (1) his neck

injury was a result of the February 26, 1997 compensable work

injury and (2) he had ongoing disability as a result of his

                                 - 6 -
compensable hand and wrist injuries.     The commission determined

Dr. Snyder's report to be the most persuasive.    In reviewing the

evidence, the commission found

          [t]he medical opinions in the record do not
          support the claimant's position. Dr. Snyder,
          who was the claimant's primary physician for
          approximately ten months following the
          accident, could not causally relate the neck
          injury to the accident. Dr. Loftus - - who
          treated him for his hand and wrist pain - -
          did not offer an opinion about the cause of
          the claimant's neck pain. Although Dr. Nebab
          was consulted for pain management, he failed
          to record any complaint of neck pain by the
          claimant, and did not offer any opinion as to
          its cause. While not specifically offering
          an opinion as to the cause of the claimant's
          neck pain, Dr. Holsapple noted the claimant's
          report that his neck symptoms had worsened
          after the automobile accident in September of
          1998.

               Only Drs. Criscitiello and Rinehart
          suggested that the claimant's neck problems
          were related to the compensable accident. We
          find, however, that the opinions of these
          doctors are not entitled to significant
          weight because they were either misinformed
          or uninformed about crucial facts.

     In addressing claimant's ongoing hand disability, the

commission stated

          [t]he only physician offering a specific
          opinion causally relating the claimant's
          ongoing hand and wrist pain to the
          compensable accident was Dr. Rinehart. He
          offered the conclusory opinion that the
          claimant's bilateral hand pain was caused by
          the accident in the context of a one-time,
          independent medical evaluation at the
          claimant's behest for purposes of unrelated
          litigation. . . . [T]he information Dr.
          Rinehart relied upon in rendering his opinion
          was not entirely accurate.


                                 - 7 -
The commission's finding, that the medical evidence does not

support the claimant's position and that he lacked credibility,

is clearly supported by the evidence.   We hold there is ample

credible evidence to support the commission's decision.

     For the foregoing reasons, the decision of the commission is

affirmed.

                                                          Affirmed.




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