                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


GUY C. EAVERS EXCAVATING CORPORATION
AND
VALIANT INSURANCE COMPANY                       MEMORANDUM OPINION *
                                                    PER CURIAM
v.   Record No. 2748-96-3                         APRIL 22, 1997

JAMES HULAN WALDRON


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (John P. Grove; John C. Brownlee; Woods,
           Rogers & Hazlegrove, on brief), for
           appellants.

           (Terry L. Armentrout; Armentrout &
           Armentrout, on brief), for appellee.



     Guy C. Eavers Excavating Corporation and its insurer

(hereinafter collectively referred to as "employer") contend that

the Workers' Compensation Commission erred in (1) holding

employer responsible for the cost of certain medical treatment

rendered to James Hulan Waldron for back complaints; and (2)

finding that employer failed to prove the light-duty job offered

to Waldron was suitable to his residual work capacity.     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.    Rule 5A:27.

                        I.   Medical Expenses
     Waldron sustained a compensable injury on December 13, 1993.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
In an opinion dated February 22, 1995, a deputy commissioner

found that Waldron's preexisting back condition was aggravated by

the accident.   The employer did not appeal from the award

granting Waldron temporary partial disability for his back

injury.

     In December 1995, Waldron filed a claim alleging that the

employer had not paid medical bills for his back injuries.

     In holding employer responsible for the cost of medical

treatment rendered to Waldron by Dr. John C. MacIlwaine and Dr.

John A. Jane for Waldron's back complaints, the commission found

as follows:
          The contested charges appear to relate to
          medical treatment by Dr. . . . MacIlwaine,
          the treating orthopedic/hand surgeon, and Dr.
          . . . Jane, neurosurgeon, who evaluated
          [Waldron] upon referral by Dr. MacIlwaine.
          We find that treatment by Dr. MacIlwaine, or
          upon his referral, for the back complaints is
          clearly the responsibility of the employer,
          based upon the Opinion of February 22, 1995
          . . . . The referrals were either for
          medical treatment or evaluation of the
          industrial injury by other physicians.

               As to Dr. Jane, we note his various
          reports cited by counsel for the employer to
          the effect that [Waldron] suffers from lumbar
          stenosis of a developmental type and
          questioning the effect of the industrial
          injury on this preexisting condition, as set
          forth in his report of March 10, 1996.
          However, this comes after the determination
          of a causal connection between the
          preexisting condition and aggravation by the
          industrial accident has been made and has
          become final. The same opinion expressed in
          Dr. Jane's other reports is rejected for the
          same reason. . . . We also note the
          handwritten note, possibly by him, that: "He
          has osteoarthritis - not injury associated."



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              There is no indication that this is a
             condition which has developed since the
             Opinion of February 22, 1995.


     Because employer did not appeal the commission's February

22, 1995 opinion, the commission's decision regarding the

causation of Waldron's back complaints became final and

conclusive.    In Graham v. Virginia Elec. & Power Co., 230 Va.

273, 337 S.E.2d 260 (1985), the Virginia Supreme Court ruled as

follows:
                  "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."

Id. at 277, 337 S.E.2d at 263 (citation omitted) (alteration in

original).

     The causation issue in this claim is the same issue that the

commission adjudicated in its February 22, 1995 opinion.     The

issue is raised by the same parties.    Therefore, the commission

did not err in finding that its February 22, 1995 ruling

continued to bind the parties.

     Moreover, the medical evidence supports the commission's

finding that Dr. Jane's reports did not indicate that Waldron's

back complaints arose from conditions that developed after the

February 22, 1995 opinion.    Accordingly, the commission did not

err in holding employer responsible for the medical treatment


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rendered by both doctors for Waldron's back complaints.




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                     II.   Selective Employment

     On appeal, we view the evidence in the light most favorable

to the party prevailing below.    See R. G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).     So

viewed, the evidence proved that Dr. Shepard Hurwitz treated

Waldron's compensable ankle injury upon a referral by Dr.

MacIlwaine.   According to Dr. Hurwitz's November 3, 1995 physical

capabilities evaluation, Waldron could operate a car but was

precluded from operating a truck, crane, or tractor.    The
light-duty job offered to Waldron required that he drive a pickup

truck.

     "To support a finding of refusal of selective employment

'the record must disclose (1) a bona fide job offer suitable to

the employee's capacity; (2) [a job offer that was] procured for

the employee by the employer; and (3) an unjustified refusal by

the employee to accept the job.'"     James v. Capitol Steel Constr.

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (citation

omitted) (alteration in original).    Unless we can say as a matter

of law that employer's evidence sustained its 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 denying employer's application to suspend Waldron's

benefits, the commission found that the medical restrictions

placed upon Waldron by Dr. Hurwitz precluded Waldron from




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operating a truck.   Because the light-duty job required that

Waldron drive a pickup truck, the commission found that

employer's evidence did not establish that the job fell within

Waldron's medical restrictions.   These findings are supported by

credible evidence.   In addition, as the commission correctly

noted, no evidence showed that employer obtained Dr. Hurwitz's

approval of the light-duty job offered to Waldron.

     In its role as fact finder, the commission was entitled to

reject employer's argument that operating a pickup truck was

sufficiently similar to operating a car.   Employer failed to

present evidence of the size of the truck and whether it would be

equipped with an automatic or manual transmission.    The size of

the truck, the type of seat in the truck, and the presence of

other equipment in the truck, such as a clutch, were all relevant

to the issue whether the impact of the truck on Waldron was

greater than that of a car.   Based upon this record, we cannot

find as a matter of law that employer's evidence proved that the

light-duty job offered to Waldron was suitable to his residual

capacity.
     For the reasons stated, we affirm the commission's decision.

                                                     Affirmed.




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