                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia


MARY WASHINGTON HOSPITAL AND
 THE VIRGINIA INSURANCE RECIPROCAL
                                           MEMORANDUM OPINION* BY
v.   Record No. 1582-98-2                   JUDGE LARRY G. ELDER
                                                MARCH 30, 1999
PATRICIA B. HOLLOWAY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Andrea L. Bailey (Crews & Hancock, P.L.C., on
          briefs), for appellants.

          Leila H. Kilgore (Benjamin M. Smith, Jr.;
          Kilgore & Smith, on brief), for appellee.


     Mary Washington Hospital and the Virginia Insurance

Reciprocal (hereinafter collectively employer) appeal from a

decision of the Virginia Workers' Compensation Commission

(commission) denying employer's application, based on an alleged

change in condition, to terminate compensation benefits payable

to Patricia B. Holloway (claimant).    Employer contends no

credible evidence supported the commission's decision that

employer failed to meet its burden of proving claimant's ongoing

disability was not causally related to her compensable injury of

September 7, 1994.     For the reasons that follow, we disagree and

affirm the ruling of the commission.




     *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                                  I.

                                 FACTS

     On September 7, 1994, while working as a nurse for employer,

claimant sustained a compensable injury to her back while moving

a patient from a stretcher to a bed.     Claimant received treatment

for her injury from Andre Eglevsky, Jr., an orthopedic surgeon

from employer's panel of physicians.     Dr. Eglevsky diagnosed her

as having a "lumbo-sacral spine sprain," which he attributed to

her lifting a patient on September 7, 1994.    Employer accepted

the claim as compensable, and the commission entered an award for

various periods of disability.    Claimant was temporarily and

totally disabled from the date of the accident through

December 12, 1994, and temporarily and partially disabled at

varying rates thereafter.

     Dr. Eglevsky treated claimant for her injury continuously

from 1994 to 1997, during which time claimant reported ongoing

chronic pain.   Multiple MRIs revealed that claimant had two

herniated disks, but neither Eglevsky nor a neurosurgeon to whom

Eglevsky referred claimant believed that the disks were the

source of her problems.   Whether Eglevsky believed these

herniations could have resulted from claimant's 1994 injury is

unclear.

     During the course of his treatment, Dr. Eglevsky noted that

claimant had received a diagnosis of fibromyalgia prior to her

1994 injury, and he opined that her fibromyalgia played a greater

role in her inability to return to full-duty employment than did

her mechanical back problem.   However, Eglevsky noted the



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contrary opinion of a rheumatologist, who believed that

claimant's mechanical back problem was responsible for her pain

and that "the back problem is fanning the fibromyalgia."

     In September 1996, Dr. Eglevsky opined that claimant was in

a "[chronic] pain pattern, the pain emanating from fibromyalgia,

chronic muscular pain, etc.," that "there [was] [no] simple

solution to her problem," and that he did not "foresee any

dramatic increase in her work capacity."

     After examining claimant on October 9, 1997, Dr. Eglevsky

reported that "it's not really clear what the source of

[claimant's chronic pain problem] is; that is, it could be

related to her chronic myofascial pain; it may be related to scar

tissue in her back or just a chronic muscular problem."

     By letter of November 6, 1997, however, less than a month

later, and without further examining claimant, Dr. Eglevsky

opined as follows:

          After treating [claimant] for several years
          and after evaluating her various tests, her
          various second opinions, and watching the
          course of her treatment, I have concluded
          that her present pain is not related to her
          accident of September 7, 1994.
          She is suffering from a chronic pain problem
          that stems from her fibromyalgia. I feel
          that this is a pre-existing condition and is
          not related to her industrial accident of
          September 7, 1994.

In an office note of November 11, 1997, Eglevsky noted that he

based his opinion on the duration of claimant's problem, the lack

of objective findings, the fact that no physician who had

examined her felt she had a surgical lesion, and the fact that

all attempts at treatment had failed.



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     By letter of November 25, 1997, employer moved to terminate

claimant's benefits based on Dr. Eglevsky's November 6, 1997

report, that claimant's ongoing disability was not causally

related to her 1994 injury.

     In opposing employer's change-in-condition application,

claimant presented the medical records of Dale Pcsolyar, a

neurologist whom claimant apparently saw on referral from her

personal internist.   On November 13, 1997, Dr. Pcsolyar noted

that claimant's pain could be "strictly myofascial pain, may be

piriformis syndrome."    He also said he could not "rule out

sacroiliac joint pain referral, facet joint pain referral [or]

. . . internal disk disruption" but that he did not think it was

neuropathic in origin.   Finally, he said, "[g]iven her widespread

musculoskeletal pain, [he] would like to look for . . . causes

other than fibromyalgia."   Dr. Pcsolyar reviewed claimant's most

recent MRI, and on December 11, 1997, he recommended a

"Somatosensory Evoked Potential" or "SSEP to rule out

radiculopathy in which case this would of course implicate the

degenerated disk disease affecting nerve roots causing her pain

syndrome."   He noted that "if the SSEP is abnormal, then only

nerve root impingement either through the piriformis or from the

disk would account for such an abnormality."   The results from

the "left sural SSEP" were abnormal, which Pcsolyar said "could

be indicative of an abnormality between the point of stimulation

to the S1 lumbar nerve root and could be seen in an S1

radiculopathy on the left."




                                - 4 -
                                 II.

                               ANALYSIS

     "In an application for review of an award on the ground of a

change in condition, the burden is on the party alleging such

change to prove his allegations by a preponderance of the

evidence."   Rossello v. K-Mart Corp., 15 Va. App. 333, 335, 423

S.E.2d 214, 216 (1992) (citation omitted).      Factual findings made

by the commission in reviewing the employer's change-in-condition

application are "conclusive and binding on the appellate court if

based on credible evidence."    Jules Hairstylists, Inc. v.

Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592, 595 (1985).       In

determining whether credible evidence exists, we view the

evidence in the light most favorable to the prevailing party.

See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390

S.E.2d 788, 788 (1990).   This Court does not "'retry the facts,

reweigh the preponderance of the evidence, or make its own

determination of the credibility of the witnesses.'"       Falls

Church Constr. Corp. v. Valle, 21 Va. App. 351, 359, 464 S.E.2d

517, 522 (1995) (citation omitted).       Although the opinion of the

treating physician is entitled to great weight, see Pilot Freight
Carriers v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572

(1986), "[m]edical 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, 214 (1991).

     Here, the commission found that employer failed to prove

claimant's continuing disability was not related to her




                                - 5 -
industrial injury.    Implicit in the commission's decision is a

finding that Dr. Eglevsky's November 6, 1997 opinion was not

credible.    The commission noted that, as late as October 9, 1997,

Dr. Eglevsky opined that the source of claimant's ongoing pain

was unclear and that "it could be related to the chronic

myofascial pain, scar tissue in her back or [chronic] muscular

problems."   On November 6, 1997, however, less than one month

later, and in the absence of an additional medical examination,

Eglevsky was certain that claimant's ongoing chronic pain

problems resulted from a single source, her pre-existing

fibromyalgia or "chronic myofascial pain," and were unrelated to

her compensable injury of September 7, 1994.   In implicitly

rejecting this opinion, the commission noted that "[t]he record

contain[ed] no medical report between [Dr. Eglevsky's October 9,

1997 office note] and the doctor's November 6, 1997, letter"

which would support his change in opinion.   Under the

commission's authority to assess the credibility of the witnesses

and determine what weight to give medical evidence, it was free

to reject Dr. Eglevsky's opinion as to causation.   Once it

rejected that opinion, no evidence in the record proved that

claimant's ongoing disability was not causally related to her

compensable injury.

     Employer contends that the fact that Dr. Eglevsky mentioned

more than one possible source of claimant's ongoing chronic pain

in his office note of October 9, 1997, does not mandate the

conclusion that claimant's ongoing disability is causally related
to her compensable injury.   Although this assertion is true, it




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does not take into account the fact that employer bore the burden

of proving, on its change-in-condition application, that

claimant's ongoing pain and related disability are not causally

related to her compensable injury.     Therefore, considering only

Dr. Eglevsky's medical records and opinions, the commission was

free to reject his most recent opinion on the issue of causation

as not credible.

     Here, the commission also relied upon the reports of Dr.

Pcsolyar, a neurologist, and the absence of any reports from Dr.

Miller, a physician who had treated claimant for her fibromyalgia

in the past.   Dr. Pcsolyar's records from November 1997 indicated

several possible causes for claimant's ongoing pain, including

"strictly myofascial pain," "piriformis syndrome," "sacroiliac

joint pain referral, facet joint pain referral [or] . . .

internal disk disruption."   Therefore, unlike Dr. Eglevsky, Dr.

Pcsolyar was unable to conclude that claimant's ongoing pain was

caused solely by her pre-existing fibromyalgia.    Furthermore, Dr.

Pcsolyar performed additional testing, a "[s]omatosensory

[e]voked [p]otential test" or "SSEP."    His records indicated that

the results from the "left sural SSEP" were abnormal and that

"only nerve root impingement either through the piriformis or

from the disk would account for such an abnormality."    Therefore,

Dr. Pcsolyar's testing resulted in objective findings which

implicated sources for claimant's ongoing pain other than, or in

addition to, claimant's fibromyalgia, whereas Dr. Eglevsky had

noted a lack of objective findings and concluded that claimant's

ongoing chronic pain stemmed solely from her fibromyalgia.



                               - 7 -
     "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).    Although Dr.

Pcsolyar rendered no opinion as to the causal relationship

between the nerve root impingement "either through the piriformis

or from the disk" and claimant's compensable injury, Dr.

Eglevsky's records and November 6, 1997 letter provide no

indication that he considered these possible sources of

claimant's pain in rendering his opinion on causation.

Therefore, Dr. Pcsolyar's opinions provided a further basis for

the commission's rejection of Dr. Eglevsky's November 6, 1997

opinion on causation.

     For these reasons, we hold that credible evidence supported

the commission's denial of employer's change-in-condition

application seeking termination of claimant's benefits.

Therefore, we affirm the commission's decision.

                                                           Affirmed.




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