                      COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


BOBBY DERWIN GIBSON
                                             MEMORANDUM OPINION*
v.   Record No. 1484-01-3                         PER CURIAM
                                               OCTOBER 2, 2001
BILL GATTON CHEVROLET CADILLAC ISUZU AND
 CINCINNATI CASUALTY COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Terry G. Kilgore; Wolfe, Farmer, Williams &
             Rutherford, on brief), for appellant.

             (Christen W. Burkholder; Christen W.
             Burkholder, P.C., on brief), for appellees.


     Bobby Derwin Gibson (claimant) contends that the Workers'

Compensation Commission erred in (1) finding that he

unjustifiably refused selective employment on or about May 4,

2000; (2) finding that his headaches were not causally related

to his compensable cervical strain; and (3) considering the

issue of causation when employer did not raise that issue before

the deputy commissioner at the hearing.      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.     See Rule 5A:27.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                 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

(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).

     In ruling that employer proved that claimant unjustifiably

refused selective employment and in terminating claimant's

outstanding award effective May 9, 2000, the commission found as

follows:

           Dr. [Matthew] Wood, the claimant's treating
           physician, is in the best position to
           determine his ability to return to light
           duty work on or about May 4, 2000. In
           reaching this conclusion, we note that [Dr.
           Wood] had access to all of the claimant's
           medical records, as well as the initial
           records concerning the history of the
           claimant's injury. [Dr. Wood] is therefore
           in a better position to determine the
           claimant's work ability than a psychologist
           who performed testing at the request of
           claimant's counsel after there was a release
           to regular work. We also note that the
           claimant testified to an inability to drive
           safely because of limited range of motion in
           his neck. This is contrary to the medical

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          reports. In addition the claimant testified
          to driving around town. As to the
          claimant's assertion that he could not work
          because of a warning on his medication, Dr.
          Wood who was the claimant's treating
          physician was in the best position to
          determine his medication needs and whether
          they prohibited his return to work. The
          doctor approved the light-duty driving job
          and also released him to work.

     The commission's findings are supported by credible

evidence, including the medical records and opinions of

claimant's treating physician, Dr. Wood.   "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).    As

fact finder, the commission was entitled to weigh the medical

evidence, to accept Dr. Wood's opinions, and to reject the

contrary opinion of Dr. Timothy A. Urbin, a licensed

psychologist.   Dr. Urbin interviewed and tested claimant upon

his counsel's request, was provided an inaccurate history of

claimant's injury, and never indicated whether he was aware of

claimant's previous testing or treatment by Dr. Wood and

Dr. Douglas P. Williams, a neurologist.    "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).

     Because the commission's findings are supported by credible

evidence, they are binding and conclusive upon us.   "The fact


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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).

                            II. and III.

     With respect to the issue of the causation of claimant's

headaches, the commission noted in a footnote to its opinion

that "[t]he deputy commissioner noted that because the carrier

did not raise the issue of causation, it would not be decided."

Moreover, the commission recognized that the primary issue on

review was whether the claimant refused light duty employment on

or about May 4, 2000.    In discussing claimant's headaches as

they related to this issue, the commission noted the following:

          The record reflects that since the accident
          the claimant has reported problems with
          headaches. However, the record does not
          establish whether the headaches were the
          result of the cervical strain or an
          additional injury that occurred at the time
          of the accident. The Memorandum of
          Agreement only accepted a cervical strain.
          Dr. Wood, a neurosurgeon, who has treated
          the claimant since the time of the accident
          has not stated that the claimant cannot work
          because of the headaches. He in fact
          released the claimant to his pre-injury
          work. He has sought consultations from
          Dr. Williams concerning the claimant's
          headaches. Dr. Williams has indicated that
          the headaches may be refractory.
          Dr. Williams has made no statement
          concerning claimant's ability to work.

     Nothing in this record indicates that the commission

specifically addressed the issue of the causation of claimant's

                                - 4 -
headaches.   Rather, the record shows that the commission

discussed claimant's headaches in the context of determining

whether the headaches had any bearing upon the issue of

claimant's unjustified refusal of selective employment.

Accordingly, we find no merit in the second and third questions

presented by claimant on appeal.

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

                                                            Affirmed.




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