                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


CAVALIER MINING, INC.
AND
TRAVELERS INSURANCE COMPANY                   MEMORANDUM OPINION *
                                                  PER CURIAM
v.   Record No. 1071-96-3                      OCTOBER 8, 1996

DAVID E. MULLINS


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (Jim H. Guynn, Jr.; Guynn & Clemens, on
           brief), for appellants.

           (Robert B. Hines II, on brief), for appellee.



     Cavalier Mining, Inc. and its insurer (hereinafter

collectively referred to as "employer") contend that the Workers'

Compensation Commission ("commission") erred in finding that as

of January 17, 1995, David E. Mullins ("claimant") remained

disabled from performing his pre-injury job due to his

compensable September 17, 1994 back injury.   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.

     As a threshold issue, employer contends that the commission

erred in placing the burden of proof upon it.      We disagree and

find, based upon this record, that the commission correctly

concluded that
          [b]ecause [employer] failed to timely solicit
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
             and file agreements for an accepted claim
             that would have resulted in an enforceable
             award from the Commission, we will presume
             one was entered to avoid giving the carrier
             an advantage by virtue of such neglect.
             Accordingly, the burden is on the employer to
             present grounds to show that the presumed
             award should be terminated. National Linen
             Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d
             187 (1987) . . . .


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

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

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

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

proved claimant's compensable lower back injury no longer

disabled him from performing his pre-injury work after January

17, 1995, the commission's findings are binding and conclusive

upon us.     Tomko v. Michael's Plastering Co., 210 Va. 697, 699,

173 S.E.2d 833, 835 (1970).

     In awarding benefits to claimant, the commission found as

follows:
             we infer and find that the claimant's
             preexisting spondylolisthesis and
             degenerative back disease was [sic]
             materially aggravated by the work accident,
             and the employer is liable for such effects,
             unless and until he has recovered from such
             accident and is returned to his pre-injury
             state. The medical records establish that
             the claimant has never been returned through
             medical treatment or passage of time to his
             preaccident asymptomatic condition. Rather
             it is clear from the medical records that he
             has remained symptomatic and under the care
             of a physician for the back injury since the
             accident. 1

     1
      The medical evidence showed that claimant sustained an



                                   2
        These findings are amply supported by the medical records of

the treating physician, Dr. Kelly Taylor, and the December 2,

1994 Attending Physician's Report of Dr. S. C. Kotay, the

treating orthopedic surgeon.    "Where reasonable inferences may be

drawn from the evidence in support of the commission's factual

findings, they will not be disturbed by this Court on appeal."

Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d

695, 698 (1988).
        Viewing the evidence in the light most favorable to

claimant, we cannot say as a matter of law that employer's

evidence proved claimant's compensable back injury no longer

disabled him from performing his pre-injury job after January 17,

1995.    Accordingly, we affirm the commission's decision.

                                           Affirmed.




acute back strain in 1966. At that time, he was diagnosed as
suffering from spondylolisthesis. In 1990, claimant sustained a
mild lower back sprain. However, between 1990 and the date of
claimant's compensable accident, there is no evidence to indicate
that claimant's back condition was symptomatic or that it ever
caused him to miss work.




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