                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


DENNIS D. POLESKY
                                          MEMORANDUM OPINION * BY
v.   Record No. 2468-96-4               JUDGE JAMES W. BENTON, JR.
                                              APRIL 15, 1997
ALEXANDRIA EXXON AND
 UNITED STATES FIDELITY & GUARANTY COMPANY


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            Christopher Paul Schewe (Cake, Rhoades &
            Schewe, P.C., on brief), for appellant.

            Joseph F. Giordano (Semmes, Bowen & Semmes,
            on brief), for appellees.



      Dennis D. Polesky appeals from the commission's ruling that

he failed to prove a change in condition and a compensable

disability beginning on September 1, 1995.    Polesky contends that

the commission improperly invoked the principle of res judicata

and that no credible evidence supported the commission's

decision.    For the reasons that follow, we affirm the decision.

                                  I.

      Viewing the evidence in the light most favorable to the

employer, the party who prevailed before the commission, see
Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504,

339 S.E.2d 916, 916 (1986), the record proved that Polesky was

hired by the employer in 1985 as a gas station attendant.

Because Polesky had informed the employer that he had seven prior
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
hernia operations which permanently restricted him from lifting

more than fifteen pounds, the employer hired him in a light duty

capacity.    On September 17, 1994 Polesky lifted one of the gas

station's bay doors and felt a sharp pain in the left side of his

lower back.

     Polesky initially received treatment from Dr. Henry

McCleary, a chiropractor.   Dr. McCleary excused Polesky from work

until September 24, 1994 and referred Polesky to Dr. Abdorasool

Janati, a neurologist.   Dr. Janati requested an MRI, which, when

performed on October 24, 1994, showed "no evidence for disc

herniations."    Several weeks later, Dr. Janati performed an EMG

study and concluded that Polesky had "a mild L3 radiculopathy on

the left."    Dr. Janati also performed a somatosensory evoked

response study of Polesky's lower extremities and reported that

the result was normal.
     When the employer offered Polesky a panel of physicians,

Polesky selected Dr. Wayne C. Lindsey, an orthopedist.   Dr.

Lindsey evaluated Polesky on November 1, 1994 and referred

Polesky to physical therapy for hamstring stretching and lumbar

strengthening.   However, Dr. Lindsey reported that Polesky was

capable of resuming his normal light duty work activities.

     Polesky was delayed in his return to work because of

renovations at the gas station, and he returned to work on

December 29, 1994.   After returning to work, Polesky participated

in a full-time work hardening program at the Rehability Center




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that consumed his work days from January 4, 1995 to January 20,

1995.    The final report from the Rehability Center recommended

that Polesky return to his full-time former employment.

        In February 1995, Dr. Lindsey reviewed the reports from the

Rehability Center and released Polesky to his regular duties.

Polesky continued his full-time employment duties until March 3,

1995.    Polesky testified that on March 3 he experienced pain when

raising doors.
        Noting that Dr. Lindsey had directed Polesky to return to

work, Dr. McCleary opined on March 3, 1995 that Polesky had been

"forced back to full time work [too] quickly" and that working

had aggravated his condition.    He recommended that Polesky be put

on full disability status until further notice.    On March 3, Dr.

Janati also opined that Polesky was totally disabled.

        On March 22, 1995, Polesky filed a claim for benefits and

alleged that he was disabled beginning September 17, 1994, and

continuing.    Dr. Janati reported again on August 4, 1995, shortly

before the evidentiary hearing, that Polesky "continues to be

totally disabled."    Following an evidentiary hearing on August 8,

1995, the deputy commissioner found that Dr. Lindsey, the last

physician who examined Polesky, opined that Polesky was able to

work and that no physician had examined Polesky after March 3.

Although the deputy commissioner had as evidence Dr. McCleary's

March 3, 1995 opinion and Dr. Janati's March 3, 1995 and August

4, 1995 opinions that Polesky was disabled, the deputy




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commissioner ruled "that the evidence does not establish

continuing total work incapacity from March 3, 1995."   The deputy

commissioner entered an award for compensation for total work

incapacity from January 11, 1995 through January 24, 1995.

Polesky did not appeal from that decision.

     Later, Polesky filed a change in condition application,

seeking total disability benefits from March 3, 1995 and

continuing.   At the March 28, 1996 evidentiary hearing on that

application, Polesky testified that he had not suffered any

additional injuries after August 1995.   The evidence also proved

that Dr. McCleary examined Polesky on September 12, reported that

his disability status had not changed, and continued treating

Polesky.   On September 14, 1995, Dr. Janati reported that he

examined Polesky, noted that his symptoms were "essentially

unchanged," and opined that Polesky remained totally disabled.
     Dr. Mirza Baig examined Polesky in October 1995 and

suggested that Polesky consider percutaneous lumbar discectomy

because, among other reasons, the MRI given in 1994 suggested a

disc herniation.   While continuing to treat Polesky, Dr. Janati

recommended that he receive epidural steroid blocks and concurred

with Dr. Baig that surgery might be necessary.   However, Dr.

Lindsey examined Polesky in November 1995 and restated his

opinion that Polesky could continue his normal work activities.

     Following the evidentiary hearing, the deputy commissioner

ruled that Polesky has been disabled since September 1995, that




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the MRI confirmed the disc herniation, and that Polesky was

entitled to temporary total disability benefits from September 1,

1995 and continuing until his conditions change.   The commission,

however, ruled that Polesky had not met his burden of proving a

change in condition and reversed the deputy commissioner's

decision.   In so ruling, the commission made the following

findings:
                 We find that the medical reports from
            the treating physicians demonstrate no actual
            change in condition since [Polesky's]
            disability status was determined by the
            Deputy Commissioner in the Opinion issued
            August 31, 1995. The claimant in these
            proceedings essentially asks the Commission
            to reevaluate evidence that is now restated
            by his treating physicians. There is no new
            evaluation based on evidence not earlier
            available or considered by the physicians, or
            by the Deputy Commissioner when the case was
            earlier decided. We therefore find no change
            in condition, and the claimant is barred by
            res judicata from a reconsideration of
            disability status that is unchanged since
            March 3, 1995.


                                 II.

     "General principles of work[er]'s compensation law provide

that '[i]n 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)).   "[I]t is fundamental that a finding of fact made by



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the Commission is conclusive and binding upon this court on

review."   Virginia Dept. of Corrections v. Powell, 2 Va. App.

712, 714, 347 S.E.2d 532, 533 (1986).    Equally fundamental is the

principle that "[a] question raised by conflicting medical

opinion is a question of fact."   Id.

     The record clearly established that following the first

evidentiary hearing the deputy commissioner found that Dr.

Janati's and Dr. McCleary's diagnoses were not persuasive.     The

deputy commissioner gave little weight to their reports,

including Dr. Janati's report dated August 4, 1995, that Polesky

continued to be disabled.   Instead, the deputy commissioner

relied upon Dr. Lindsey's opinion that Polesky was not disabled.

Thus, the deputy commissioner found that Polesky was entitled to

compensation for two weeks in January 1995 and proved no

continuing disability after that period.
     Polesky's failure to appeal those findings is significant

because in September of 1995, a period in which Polesky contends

that he experienced a change in condition, Dr. Janati reported

that Polesky's "symptoms remain[ed] essentially unchanged" and
that he "remain[ed] totally disabled."     Likewise, Dr. McCleary

examined Polesky in September 1995 and also reported that

"Polesky was placed in a total disability status on March 3,

1995" and that he continued to be disabled.    Both doctors

believed that Polesky's condition had continued to be the same

since March 3, 1995.   Their reports fail to establish that




                               - 6 -
Polesky's condition had significantly changed since March 3,

1995, the date the deputy commissioner found was the end of

Polesky's disability.

     The commission properly found that, to the extent that Dr.

Janati and Dr. McCleary based their post-August 1995 reports upon

their findings that Polesky was disabled on March 3, 1995 and

continued to be so disabled, Polesky was barred by res judicata

from seeking to relitigate the initial deputy commissioner's

finding that the evidence at the August 8, 1995 hearing did not

prove disability after March 3, 1995.   The evidence at that

hearing, including a report from Dr. Janati dated August 1995,

was found insufficient to prove a disability by a preponderance

of the evidence.
               "The true test of the conclusiveness of
          a former judgment with respect to particular
          matters is identity of issues. If a
          particular point or question is in issue in
          the second action, and the judgment will
          depend on the determination of the particular
          point or question, a former judgment between
          the same parties will be final and conclusive
          in the second [action] if that same point was
          in issue and adjudicated in the first suit."

Allegheny Airlines, Inc. v. Merillat, 14 Va. App. 341, 344, 416

S.E.2d 467, 469 (1992) (citation omitted).   The commission

properly concluded that to the extent that Dr. Janati and Dr.

McCleary based their post-August 1995 findings of disability on

their diagnoses that Polesky's March 3, 1995 disability continued

unchanged, those reports were being used by Polesky contrary to

principles of res judicata.



                              - 7 -
                               III.

     On appeal, we must determine if there is credible evidence

in the record to sustain the commission's findings that Polesky

did not prove a change in condition.     See Sneed v. Morengo, Inc.,

19 Va. App. 199, 204-05, 450 S.E.2d 167, 170-71 (1994).    "'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

witnesses.'"   Falls Church Constr. Corp. v. Valle, 21 Va. App.

351, 359, 464 S.E.2d 517, 522 (1995) (citation omitted).    The

opinion of the commission must be affirmed if it is based upon

credible evidence in the record.     See Marketing Profiles, Inc. v.

Hill, 17 Va. App. 431, 435, 437 S.E.2d 727, 731 (1993) (en banc).

     The evidence in the record proved that Dr. Lindsey, who

opined that Polesky was not disabled in February 1995, also

examined Polesky in November 1995.     Dr. Lindsey opined that

Polesky had chronic lumbar strain consistent with his

pre-employment condition, that he had "no evidence of

radiculopathy that would warrant any surgical treatment," and

that Polesky "clearly demonstrates capabilities that are

consistent with his pre-injury level of activity."    Based on

those opinions, Dr. Lindsey stated that Polesky "can resume his

pre-injury level of work activity."

     The commission acknowledged that Dr. Mirza Baig examined

Polesky and recommended surgery.   However, the commission found



                               - 8 -
that Dr. Baig's diagnosis was based in large measure upon

interpretations earlier reported by Drs. Janati and McCleary and

upon an MRI study that was performed in 1994, before the first

evidentiary hearing.   Thus, the commission found Dr. Baig's

reports to be less persuasive than the reports of Dr. Lindsey,

which were based upon a more recent examination of Polesky.

     "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).   The commission

resolved the conflict in the medical evidence when it found Dr.

Lindsey's opinion to be more persuasive.   That finding is binding

upon us.    "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 Enters., Inc. v. Brooks, 12 Va.

App. 890, 894, 407 S.E.2d 32, 35 (1991).   We cannot say that the

commission's factual finding that the medical evidence failed to

prove a change of condition is unsupported by credible evidence

in the record.

     For the foregoing reasons, we affirm the commission's

decision.
                                               Affirmed.




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