                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


KWANDWO ADU-GYAMFI
                                             MEMORANDUM OPINION*
v.   Record No. 0382-01-4                         PER CURIAM
                                                JUNE 26, 2001
AUTOSTRADE INTERNATIONAL and
 PACIFIC INDEMNITY COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (John E. Carter, on brief), for appellant.

             (Robert C. Baker; Mell, Brownell & Baker, on
             brief), for appellees.

     Kwandwo Adu-Gyamfi (claimant) contends that the Workers'

Compensation Commission erred in finding that he failed to prove

his cervical condition and surgery were causally related to his

February 11, 1998 compensable 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.

     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, 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).

     So viewed, the evidence proved that claimant sustained

compensable injuries to his teeth and eye when he slipped and

fell while working for employer as a tollbooth operator.   Since

1997, Dr. Sarah Fletcher had treated claimant for neck and left

arm pain and numbness/tingling.   A January 28, 1998 cervical

spine MRI showed severe spondylosis with severe spinal stenosis

at C6-7.   As a result, Dr. Fletcher referred claimant to Dr.

James W. Melisi, an orthopedic surgeon.

     On February 11, 1998, several hours before the compensable

accident, Dr. Melisi examined claimant, who gave a history of

neck and left arm pain and numbness of a three-month duration.

After this examination and reviewing the MRI, Dr. Melisi

recommended that claimant undergo a two-level anterior cervical

disketomy at C5-6 and C6-7 with bone graft fusion.   Dr. Melisi

noted that claimant "agreed to proceed with surgery.   We will go

ahead and schedule him for surgery at his convenience."

Claimant testified that he agreed to undergo the surgery, but

wanted to postpone it until after a scheduled trip to Ghana.

Dr. Melisi agreed to schedule the surgery around the trip.

     Several hours after seeing Dr. Melisi on February 11, 1998,

claimant slipped and fell at work.   Claimant testified that the

fall rendered him unconscious and paralyzed for four to five

hours.   Claimant was transported to the emergency room.   The
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emergency room report reflects that claimant was conscious and

that he denied losing consciousness.    It also reflects that

claimant stated he was unable to move for about twenty minutes

after the accident.   An x-ray report showed degenerative

spondylosis with disk space narrowing at C4-5, C5-6, with

osteophytes and bilateral neural foraminal encroachment.

     On February 20, 1998, Dr. Melisi performed the surgery he

had proposed to claimant on February 11, 1998 before the

accident, an anterior cervical diskectomy at C5-6 and C6-7 with

bone fusion graft.    The surgery relieved claimant's severe pain

and left arm numbness.   Claimant continued to treat with Dr.

Melisi for the next three months.   On April 22, 1998, Dr. Melisi

noted that he scheduled claimant for three weeks of physical

therapy "and otherwise discharged him from the office."

     On May 25, 1999, Dr. John P. McConnell, an orthopedic

surgeon, examined claimant and reviewed the medical records,

except the x-rays and MRI scans.    Dr. McConnell noted claimant's

pre-existing significant cervical spondylosis, but concluded

that the fall "clearly represents an aggravation of [his

pre-existing] condition."   Dr. McConnell opined that claimant

could not return to his pre-injury employment at that time.

     On October 21, 1999, Dr. Joseph Linehan, an orthopedic

surgeon, performed an independent medical examination of

claimant.   Dr. Linehan noted as follows:


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          It is apparent from the records provided,
          the history and physical examination today
          that Mr. Adu-Gyamfi had cervical spondylosis
          with cervical disc disease and a cervical
          radiculopathy for which surgery had been
          recommended. When he slipped and fell on
          2/11/98 after visiting his neurosurgeon, his
          symptoms were worse and surgery was moved up
          and performed earlier than had originally
          been planned. However, in my opinion, the
          surgery performed was not affected by the
          injury of 2/11/98 nor has the outcome of the
          surgery in any way, shape or form been
          altered by that incident.

     On December 9, 1999, Dr. Linehan wrote as follows:

          I have today reviewed the MRI scan of Mr.
          Adu-Gyamfi's cervical spine, which was
          performed on 1/29/98, 13 days before his
          slip and fall injury of 2/11/98. The MRI
          scan shows a herniated cervical disc at C5-6
          and C6-7. This in no way changes my opinion
          in my report of 10/21/99. I reiterate the
          fact that the man had cervical spondylosis,
          cervical disc disease and a cervical
          radiculopathy which needed surgery well
          documented before the slip and fall incident
          of 2/11/98. The incident of 2/11/98 in no
          way changed the necessity for his surgery
          nor did it change the surgery he underwent,
          nor did it alter the outcome from the
          surgery performed.

     On June 15, 1998 and January 8, 1999, Dr. Bernard Rawlins,

an orthopedic surgeon, treated claimant.   In his October 29,

1999 deposition, Dr. Rawlins opined that the February 11, 1998

fall "exasperated [claimant's] neck symptoms to the point of

becoming emergent requiring his neurosurgeon to perform surgery

sooner rather than later . . . ."    On cross-examination, Dr.

Rawlins admitted that he had not reviewed the complete medical

records, x-rays, or MRI scans.    Dr. Rawlins testified that
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claimant told him he was rendered unconscious due to the fall,

but the emergency room report indicates that claimant denied

loss of consciousness.   Dr. Rawlins based his opinions on the

increase in claimant's symptoms and his report that he was

paralyzed for a brief period of time.

     In ruling that claimant's cervical condition and surgery

were not caused by the February 11, 1998 injury by accident, the

commission made the following findings:

           While it is clear that the February 11,
           1998, fall caused an increase in the
           claimant's symptoms, there is no evidence
           that the claimant suffered a sudden
           mechanical change in his body as a result of
           the fall. X-rays and MRI scans taken both
           before and after the injury are essentially
           the same. The only symptom that the
           claimant claims to have experienced after
           the fall that he had not had prior to the
           fall—temporary paralysis—was fleeting and
           fully resolved before the claimant arrived
           at the hospital. . . . While the claimant's
           symptoms caused his surgery to by [sic]
           scheduled sooner than originally planned,
           the February 20, 1998, surgery was exactly
           the same surgery Dr. Melisi recommended a
           few hours before the work-related injury.

     The commission's findings are amply supported by the

record.   Moreover, as fact finder, the commission was entitled

to reject the opinions of Drs. McConnell and Rawlins, finding

that Dr. McConnell offered no explanation as to how or why he

concluded that the February 1998 fall aggravated claimant's

pre-existing problems and Dr. Rawlins failed to identify any

physical change in claimant's condition after the accident, only

                               - 5 -
a subjective increase in symptomatology.   On the other hand, the

commission was entitled to accept Dr. Linehan's opinions, which

were supported by objective data.   "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).

Furthermore, "[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).

     Based upon the commission's factual findings and Dr.

Linehan's opinions, we cannot find as a matter of law that

claimant's evidence proved that his pre-existing cervical

condition was aggravated or exacerbated by the February 11, 1998

compensable injury by accident, resulting in his surgery and

subsequent disability.

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

                                                          Affirmed.




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