                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


MARLENE VIRGINIA DAVIS
                                             MEMORANDUM OPINION*
v.   Record No. 2746-00-2                         PER CURIAM
                                                MARCH 27, 2001
CLEAN & SHINE SERVICES, INC. AND
 TIG PREMIER INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Stephen T. Harper; Kerns, Kastenbaum &
             Reinhardt, on brief), for appellant.

             (Joshua M. Wulf; Semmes, Bowen & Semmes, on
             brief), for appellees.


     Marlene V. Davis (claimant) contends that the Workers'

Compensation Commission erred in finding that she failed to

prove that her need for bypass surgery was causally related to

her November 22, 1999 compensable injury by accident and/or was

needed to treat the congestive heart failure she suffered as a

result of the work-related accident.     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.

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     See R.G. Moore Bldg. Corp. v.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

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

sustained her 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).

     In ruling that claimant failed to sustain her burden of

proof, the commission found as follows:

          Dr. [Christopher S.] Nicholson opined that
          the accident caused significant injury to
          the claimant's lungs. Following the
          accident, [claimant] developed pulmonary
          edema and went into heart failure which
          [Dr. Nicholson] opined "was probably due to
          the stress of the accident." He opined that
          the accident "precipitated an episode of
          heart failure and myocardial infarction."
          The doctor, however, did not believe that
          all of [claimant's] ailments and medical
          care were the result of her November 22,
          1999, work accident. Rather, he noted that
          she had undiagnosed problems prior to the
          accident, and the accident "lead to their
          discovery." He also agreed that the
          claimant would have had to undergo bypass
          surgery at some time, regardless of the
          automobile accident.

               Thus, the only clear statement of
          causation is that the accident led to the
          claimant's pulmonary edema, and an episode
          of myocardial infarction. She also suffered
          contusions, soft tissue injuries, and
          respiratory problems. A December 2, 1999,
          x-ray revealed that her abnormalities noted
          on November 22, 1999, had resolved. She was
          discharged as improved and would return for
          surgery. As the Deputy Commissioner noted,
          "the medical evidence suggests that the
          claimant recovered from the acute conditions
          caused by the motor vehicle accident prior
          to her bypass surgery." The December 2,

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             1999, x-ray showed resolution of the
             abnormalities found on November 22, 1999,
             and Dr. Katz recommended the claimant
             recover from her acute condition before
             proceeding with surgery.

                  Dr. Nicholson opined that many of the
             claimant's heart problems were present
             before the accident and that the accident
             lead to their discovery. Significantly, he
             did not testify that the claimant's need for
             bypass surgery was caused by the accident or
             that it was needed to treat the congestive
             heart failure.

        "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 weighed

claimant's medical records and Dr. Nicholson's opinions.    In

doing so, the commission, as fact finder, concluded that Dr.

Nicholson did not opine with any degree of certainty that

claimant's need for bypass surgery was causally related to the

pulmonary edema and other injuries she suffered on November 22,

1999.    The commission also concluded that any aggravation of

claimant's pre-existing coronary conditions had resolved by

December 2, 1999.    The commission's findings are supported by

Dr. Nicholson's medical records, his opinions, and his

deposition testimony.

        Based upon this record, we cannot find as a matter of law

that claimant's evidence sustained her burden of proof.




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

                                                   Affirmed.




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