                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Retired Judge Duff*


BUCHANAN GENERAL HOSPITAL AND
 SECURITY INSURANCE COMPANY
 OF HARTFORD
                                             MEMORANDUM OPINION **
v.   Record No. 1770-01-3                         PER CURIAM
                                               OCTOBER 30, 2001
FRANCES K. HUNT


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Ramesh Murthy; Lisa Frisina Clement; Penn
             Stuart, on brief), for appellants.

             (D. Edward Wise, Jr.; Arrington, Schelin &
             Herrell, P.C., on brief), for appellee.


     Buchanan General Hospital and its insurer (hereinafter

referred to as "employer") contend that the Workers'

Compensation Commission erred in finding that employer failed to

prove that (1) Frances K. Hunt unjustifiably refused to

cooperate with Dr. Thomas Hulvey's independent medical

examination; and (2) Hunt was able to return to her pre-injury

work as of May 23, 2000.     Upon reviewing the record and the

briefs of the parties, we conclude that this appeal is without



     *
       Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
     **
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
merit.     Accordingly, we summarily affirm the commission's

decision.     See Rule 5A:27.

     "General principles of workman'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)).    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).

                 I.   Unjustified Refusal to Cooperate

     Code § 65.2-607(B) provides as follows:

                  If the employee refuses to submit
             himself to [a medical examination paid for
             by employer] or in any way obstructs such
             examination requested by and provided for by
             the employer, his right to compensation and
             his right to take or prosecute any
             proceedings under this title shall be
             suspended until such refusal or objection
             ceases and no compensation shall at any time
             be payable for the period of suspension
             unless in the opinion of the Commission the
             circumstances justify the refusal or
             obstruction.

     In refusing to suspend Hunt's benefits, the commission

found as follows:


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             There is no definite statement in
             [Dr. Hulvey's] report establishing that Hunt
             intentionally failed to cooperate.
             Dr. Hulvey advised that Hunt only moved her
             neck a few degrees, did not bring her hands
             above eye-level, bent forward only a few
             degrees, and refused to hyperextend her
             back. Yet, he commented that while she
             would not comply, she also "seemed to be
             unable to cooperate" (emphasis added).
             Clearly, Dr. Hulvey concluded that Hunt's
             physical status rendered her unable to
             perform some of the requested movements.

             Accordingly, we are not persuaded that
             Hunt's actions were an unjustifiable refusal
             to cooperate. Dr. Hulvey recognized that
             Hunt's physical limitations affected her
             participation in, and cooperation with, the
             examination.

     The commission's findings are amply supported by a review

of Dr. Hulvey's medical records.    Dr. Hulvey noted Hunt's

failure to perform certain movements by opinion that she "could

not or would not comply."    This does not establish that she was

feigning her inability to cooperate or intentionally refusing to

cooperate.    Moreover, although Dr. Hulvey was less than

satisfied with the extent of his examination, he was able to

obtain sufficient information to draw conclusions regarding

Hunt's condition and the extent of her disability.    Credible

evidence of Hunt's impairments is documented in the medical

records of Drs. Christa U. Muckenhausen, James W. Templin, and

Thomas W. Kramer.    Based upon this record, we cannot find as a

matter of law that employer's evidence sustained its burden of




                                 - 3 -
proving that Hunt unjustifiably refused to cooperate with Dr.

Hulvey's examination.

                 II.    Return to Pre-Injury Work

     In ruling that employer failed to prove that Hunt was

capable of returning to her pre-injury work as of May 23, 2000,

the commission found as follows:

          Dr. Muckenhausen, Hunt's treating physician,
          has followed her care for an extended period
          of time. Her numerous examinations revealed
          objective findings, such as muscle spasms
          and tenderness to palpitation. Based on
          these evaluations and positive MRI scans,
          Dr. Muckenhausen repeatedly opined that Hunt
          could not return to her pre-injury
          employment. Dr. Templin, who has also
          treated Hunt on several occasions, supports
          the findings and conclusions of
          Dr. Muckenhausen. In August and October
          1999, he greatly restricted her activities.
          Dr. Templin's April 2000 examination found
          cervical tenderness and tightness, back
          tenderness and positive straight leg raises.
          Lastly, Dr. Hulvey even indicated that Hunt
          was unable to return to work. He
          recommended that she attend a rehabilitation
          center to return her to gainful employment.

               Dr. [Jim C.] Brasfield is the only
          physician to unconditionally release Hunt to
          work, from a physical perspective. We do
          not find the report of a physician who
          examined her on one occasion to be as
          persuasive as that of a treating physician.
          Significantly, Dr. Brasfield also noted that
          a structured rehabilitation program should
          have been provided to Hunt.

               We are not convinced by the evidence
          presented that Hunt has misrepresented her
          condition to Drs. Muckenhausen and Templin
          such as to discount their opinions. In
          fact, Dr. Muckenhausen noted Hunt's

                               - 4 -
          cooperation and disagreed that she was
          malingering. Further, while Dr. [Paul R.]
          Kelley opined that [Hunt] was not
          psychiatrically impaired, Dr. [David L.]
          Forester has continued to treat her for
          psychiatric problems, including depression.
          Thus, we are not persuaded that the claimant
          was released to return to her pre-injury
          work, from a psychiatric perspective.

     "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).   Moreover, "[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).   We also note "'[t]he general rule . . . that

when an attending physician is positive in his diagnosis . . . ,

great weight will be given by the courts to his opinion.'"

Pilot Freight Carriers, 1 Va. App. at 439, 339 S.E.2d at 572

(citations omitted).

     The commission weighed the medical evidence and accepted

the opinions of the treating physicians, Drs. Muckenhausen and

Templin, while rejecting the contrary opinions of the

independent medical examiners, Drs. Brasfield and Kelley.

Because the medical evidence was subject to the commission's

factual determination, we cannot find as a matter of law that

employer's evidence sustained its burden of proving that




                               - 5 -
claimant was fully capable of performing her pre-injury work as

of May 23, 2000.

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

                                                        Affirmed.




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