                      COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Frank


DORIS PATRICIA COTE
                                             MEMORANDUM OPINION*
v.   Record No. 1390-99-3                         PER CURIAM
                                               OCTOBER 26, 1999
WESTERN STATE HOSPITAL AND
 COMMONWEALTH OF VIRGINIA


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Linda D. Slough; Chandler, Franklin &
             O'Bryan, on briefs), for appellant.

             (Mark L. Earley, Attorney General; Judith
             Williams Jagdmann, Deputy Attorney General;
             Gregory E. Lucyk, Senior Assistant Attorney
             General; Donald G. Powers, Assistant Attorney
             General, on brief), for appellees.


     Doris Patricia Cote (claimant) contends that the Workers'

Compensation Commission (commission) erred in finding that she

failed to prove that her psoas abscess was causally related to

her compensable April 3, 1998 injury by 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.

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


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

     On April 3, 1998, claimant was injured while working for

Western State Hospital (employer), when she stubbed her toe on a

portion of uneven sidewalk while walking from one duty area to

another.   Claimant fell, attempted to break her fall with her

right hand, and hit her chin on the sidewalk.   She suffered

abrasions to her right hand and chin.    Subsequent medical

treatment revealed that claimant was suffering from an abscess

in the psoas muscle.

     On May 14, 1998, claimant's treating physician, Dr. Bruce

Schirmer, initially opined that Cote "had no obvious origin for

this abcess . . . ."   In July, 1998, in response to questions

from the Virginia Department of Risk Management, Dr. Schirmer

opined that the right psoas abscess was not causally related to

the April 3, 1998 work-related injury.

     In a chart note of April 24, 1998, an unnamed consultant on

infectious diseases suggested as follows:   "Staph aureus most

likely developed [as a result of] seeding from a transient

bacteremia [at] hand scrape upon fall 4/3," resulting in a psoas

abscess.




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        On July 30, 1998, in response to a letter from claimant's

attorney, Dr. Schirmer stated that the infectious disease

consultant had opined that claimant's staph infection was likely

derived from the abrasions she sustained in the April 3, 1998

fall.    Dr. Schirmer further stated that he did not have "any

other explanation for why [claimant] developed a staph abscess

in her psoas."     Dr. Schirmer concluded that "attributing the

staph abscess to a bacteremia from such a scrape would be

certainly possible.    I would support that hypothesis given no

other information."

        Dr. Sara Monroe, an Associate Professor in the Division of

Infectious Diseases at Virginia Commonwealth University,

reviewed claimant's entire medical file at the request of

employer.    Dr. Monroe opined to a reasonable degree of medical

certainty that claimant's right psoas abscess was not causally

related to the April 3, 1998 work-related fall.    Dr. Monroe

noted that claimant began complaining of back pain as early as

the day after the fall and that she sought medical treatment

within nine days of the fall.    Dr. Monroe opined that "[a]n

abscess of the size described on CT scan . . . would take

considerably longer than 9 days to develop."    Dr. Monroe noted

that "[p]soas abscesses generally occur by spread of infection

from adjacent structures and rarely occur by bacteremic spread."

Dr. Monroe pointed out that the April 15, 1998 CT scan suggested


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that claimant suffered from "severe osteoarthritis of the lumbar

spine, a chronic condition which may result in a predisposition

to vertebral osteomyelitis or facet joint infection.   The MRI

performed at UVA on 4/21 showed L4-5 facet joint degeneration

with an adjacent fluid collection possibly representing a septic

arthritis in this area."   Dr. Monroe concluded that claimant's

           psoas abscess occurred as a result of spread
           from a septic arthritis involving the L4-5
           facet joint in the setting of severe
           degenerative arthritis involving the lumbar
           spine. This infection was probably
           developing for a considerable time (4-6
           weeks) before it became large enough to
           cause severe symptoms. [Claimant's] fall on
           4/3 was coincidental and the minor abrasions
           she suffered were not causally related to
           her psoas infection.

     In denying claimant's application, the commission found as

follows:

                We find that the claimant has, at most,
           presented evidence that suggests two or more
           equally likely causes of the claimant's
           psoas abscess. Since we found the opinion
           of the claimant's treating physician
           entitled to less deference for lack of an
           independent, objective basis for his
           diagnosis, we accord the conflicting, expert
           testimony of the employer's independent
           medical examiner at least as much weight as
           that of the treating physician. None of the
           other physicians involved offered an opinion
           that any particular cause "more likely than
           not" caused the claimant's psoas abscess.
           In view of the conflicting medical evidence
           and the record as a whole, we find that the
           claimant has failed to meet her burden of
           proving that the treatment and disability
           resulting from her psoas abscess was


                               - 4 -
          causally related to the compensable injury
          on April 3, 1998.

     "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).   The commission

articulated legitimate reasons for giving little probative

weight to Dr. Schirmer's July 30, 1998 letter, in which he

adopted the opinion of the unnamed infectious disease

consultant.   In light of these reasons and Dr. Monroe's

opinions, the commission was entitled to conclude the conflicts

in the medical evidence rendered it insufficient to prove that

claimant's psoas abscess was causally related to her compensable

April 3, 1998 work-related fall.   "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).

     Because the medical evidence was subject to the

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

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

Accordingly, we affirm the commission's decision.

                                                           Affirmed.




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