                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


BRADFORD S. DAME

v.   Record No. 3129-96-1                        MEMORANDUM OPINION *
                                                     PER CURIAM
LOCKWOOD CARPETS, INC.                              MAY 27, 1997
AND
STATE FARM INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (John H. Klein; Matthew H. Kraft; Rutter &
           Montagna, on brief), for appellant.

           (Ruth Nathanson; Midkiff & Hiner, on brief),
           for appellees.



     Bradford S. Dame (claimant) contends that the Workers'

Compensation Commission (commission) erred in not awarding him

compensation benefits after July 3, 1995 based upon its finding

that he unjustifiably refused medical treatment.      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.

     "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
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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

claimant's evidence sustained his 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).

     On September 12, 1992, claimant sustained an injury by

accident arising out of and in the course of his employment to

his back and knee.    Pursuant to awards of the commission,

claimant received temporary total and temporary partial

disability benefits for various periods of time following his

injury.   On March 3, 1995, claimant filed an application seeking

an award of temporary total disability benefits commencing

December 28, 1994.
     The medical evidence showed that on January 17, 1995, after

working briefly as a painter's assistant, claimant returned to

Dr. Douglas Griffin, complaining of increased back pain and an

inability to work.    Dr. Griffin diagnosed myofascial low back

pain and prescribed physical therapy and medication.   When next

examined by Dr. Griffin on May 23, 1995, claimant's condition

remained unchanged.   Dr. Griffin then referred claimant to the

Medical College of Virginia Pain Management Center (MCV) for

evaluation and treatment, and recommended that claimant not work

until seen at MCV.    Claimant testified that Dr. Griffin told him

he would make an appointment at MCV for claimant.   Neither Dr.



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Griffin nor employer ever made an appointment for claimant at

MCV.

       On June 12, 1995, Dr. Griffin wrote to claimant's attorney,

reiterating that he had "literally transferred" claimant's care

to MCV and that claimant should not return to work until seen at

MCV.   At no time after May 23, 1995 did claimant contact MCV for

an appointment nor did he ever return to Dr. Griffin for

treatment of his back condition, although he saw Dr. Griffin in

April 1996 for an unrelated shoulder problem.
       Based upon this record, the commission found that "[w]hile

the claimant did not affirmatively refuse any medical treatment

provided by the employer, he also made no effort to secure an

appointment at MCV, even after his attorney was advised by Dr.

Griffin on June 12, 1995, that he had transferred the claimant's

care to MCV."   Recognizing that it might have taken several weeks

to secure an appointment at MCV, the commission awarded temporary

total disability benefits to claimant for a period of three weeks

after June 12, 1995, terminating benefits as of July 3, 1995.

The commission held that claimant failed to prove continuing

disability after that date.

       Based upon claimant's failure to seek medical treatment for

his compensable injuries from May 23, 1995, when Dr. Griffin

referred him to MCV, to the June 27, 1996 hearing date, the

commission was entitled to conclude that claimant failed to prove

continuing disability after July 3, 1995.   As the commission




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noted, it is not required to "presume a continuing disability."

Based upon the lack of evidence of a continuing disability after

July 3, 1995, we cannot find as a matter of law that claimant

proved he was entitled to an award of temporary total disability

benefits after that date.

     Accordingly, we affirm the commission's decision.

                                                         Affirmed.




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