                     COURT OF APPEALS OF VIRGINIA


Present:    Judge Annunziata, Agee and Senior Judge Coleman


LARRY HARLEN SERGENT
                                             MEMORANDUM OPINION*
v.   Record No. 1455-01-3                         PER CURIAM
                                               NOVEMBER 6, 2001
FREEDOM FORD LINCOLN MERCURY, INC. AND
 UNIVERSAL UNDERWRITERS INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (D. Allison Mullins; Lee & Phipps, P.C., on
             brief), for appellant.

             (William F. Karn; Butler, Williams, Pantele &
             Skilling, P.C., on brief), for appellees.


     Larry Harlen Sergent (claimant) contends the Workers'

Compensation Commission erred in finding that (1) Freedom Ford

Lincoln Mercury and its insurer (hereinafter referred to as

"employer") proved that he was released to return to his

pre-injury work as of March 20, 2000 and that any continuing

disability was not causally related to his compensable November

11, 1999 injury by accident; and (2) he failed to prove that his

partial disability from May 26, 2000 through June 11, 2000 and

temporary total disability after June 11, 2000 were causally

related to his compensable November 11, 1999 injury by accident.

Upon reviewing the record and the briefs of the parties, we


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
conclude that this appeal is without merit.   Accordingly, we

summarily affirm the commission's decision.     See Rule 5A:27.

     In granting employer's application and denying claimant's

application, the commission found as follows:

               The Deputy Commissioner found that the
          claimant's disability after March 20, 2000,
          was unrelated to the November 11, 1999,
          accident. We agree. The claimant's
          treating physician, Dr. [D. Kevin]
          Blackwell, opined that the claimant's
          symptoms and disability after March 20,
          2000, were related to his degenerative
          disease process, not his injury of November
          1999. This opinion was uncontradicted.
          Dr. [Neal A.] Jewell opined in February 2000
          that the claimant's pain was related to his
          injury. Dr. Blackwell agreed with this
          assessment and adequately explained, based
          on his clinical findings and diagnostic
          testing, that by March 20, 2000, the
          claimant's pain, symptoms, and disability
          were related to his unrelated degenerative
          disease. Dr. Jewell did not treat claimant
          after February 2000. The Deputy
          Commissioner correctly relied on the opinion
          of Dr. Blackwell, the treating physician.

                                 I.

     "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


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(1986)).   Factual findings made by the commission will be upheld

on appeal if supported by credible evidence.    See James v.

Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487,

488 (1989).

     Dr. Blackwell's opinions constitute credible evidence to

support the commission's findings that claimant was released to

return to his pre-injury work as of March 20, 2000 and that his

disability thereafter was not causally related to his

compensable November 11, 1999 injury by accident. 1   As fact

finder, the commission was entitled to weigh the medical

evidence and to give more probative weight to Dr. Blackwell's

opinions than to the opinions of Dr. Jewell, who did not treat

claimant after February 2000.   "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, "[i]n 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




     1
       We note that Dr. Galen Smith who examined claimant on July
17, 2000 did not disagree with Dr. Blackwell's findings or
conclusions. Dr. Smith stated that he would defer to
Dr. Blackwell for further treatment recommendations and work
restrictions if such were necessary.


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the credibility of the witnesses."    Wagner Enters., Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

                               II.

     Unless we can say as a matter of law that claimant's

evidence sustained his burden of proving that his partial

disability from May 26, 2000 through June 11, 2000 and total

disability thereafter were causally related to his compensable

November 11, 1999 injury by accident, 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 light of Dr. Blackwell's uncontradicted opinion, we

cannot find as a matter of law that claimant proved he was

partially disabled between May 26, 2000 and June 11, 2000 and

temporarily totally disabled after June 11, 2000 as a result of

his compensable November 11, 1999 injury by accident.

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

                                                          Affirmed.




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