                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judge Bumgardner and
            Senior Judge Hodges


TOMMIE BRANCH
                                             MEMORANDUM OPINION*
v.   Record No. 1504-01-3                         PER CURIAM
                                               OCTOBER 23, 2001
JAMES MADISON UNIVERSITY/
 COMMONWEALTH OF VIRGINIA


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Terry L. Armentrout; Armentrout &
             Armentrout, P.L.C., on brief), for appellant.

             (Randolph A. Beales, Attorney General; Judith
             Williams Jagdmann, Deputy Attorney General;
             Gregory E. Lucyk, Senior Assistant Attorney
             General; Donald G. Powers, Assistant Attorney
             General, on brief), for appellee.


     Tommie Branch (claimant) contends that the Workers'

Compensation Commission erred in finding that he failed to prove

he was entitled to an award of permanent partial disability

("PPD") benefits based upon a twenty percent impairment rating

for loss of each of his legs as a result of his compensable

November 23, 1996 lower 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.     See Rule 5A:27.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     See 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 claimant's evidence

sustained his 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 denying claimant's application, the commission found as

follows:

           [W]e note no evidence in the record that the
           permanency rating assigned by Dr. J.
           Phillips is based on an examination either
           contemporaneous with, or prior to, his
           response of June 23, 2000. We cannot
           determine from the record what criteria was
           used by Dr. Phillips in rendering his
           opinion. Further, the medical record
           establishes that the claimant continued to
           complain of pain in the absence of any
           reports of weakness, numbness or atrophy
           documented by Dr. J. Phillips. In addition,
           there is no report of muscle spasm in the
           lower back and an absence of any objective
           diagnostic testing, i.e., MRI results, to
           establish stenosis or foraminal
           encroachment. While there are intermittent
           findings of positive straight leg raises
           either unilaterally or bilaterally, there is
           nothing in the record from which we can
           render a finding that these test results are
           correlative with any loss of functionality
           of the lower extremities.

                Regarding any symptomatology
           attributable to either leg, we note that the
           vast majority of the medical documentation
           relates solely to the right leg with little
           evidence of any symptoms in the left leg.
           There is evidence of occasional complaints
           of numbness extending to the right foot, but

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          no evidence that that [sic] this condition
          was continuous or in any manner significant
          enough to affect the functionality of that
          limb. While we note numerous reports that
          the claimant's lumbar range of motion is
          limited, we also note that Dr. J. Phillips
          indicated that this limitation was
          "voluntary" by the claimant. In the latter
          part of 1998 Dr. J. Phillips noted that the
          claimant was experiencing difficulty working
          and driving. However, the record does not
          reflect continuing problems in that regard.
          In May 1999 Dr. J. Phillips advised the
          claimant he was unable to work and should
          apply for Social Security Disability
          benefits. It appears from a fair reading of
          the record that this opinion was based on
          continuing complaints of pain and
          depression.

     "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).    Contrary to claimant's assertions on

appeal, the commission did not simply accept the opinion of

Dr. Stephen L. Phillips, who examined claimant at employer's

request, over the opinion of the treating physician,

Dr. J. Phillips.   Rather, the commission, as fact finder,

weighed all of the medical evidence, and articulated specific

reasons for rejecting Dr. J. Phillips' opinions.   In light of

these reasons, the commission was entitled to conclude that

Dr. J. Phillips' opinions did not constitute sufficient evidence

to prove that claimant sustained a twenty percent permanent

impairment to both legs.



                                - 3 -
     Because the medical evidence was subject to the

commission's factual determination, we cannot find as a matter

of law that claimant's evidence sustained its burden of proof.

Accordingly, we affirm the commission's decision.

                                                        Affirmed.




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