                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Frank, Clements and Senior Judge Bray


UNIVERSAL LIVING AND
 COMMONWEALTH CONTRACTORS GROUP
 SELF-INSURED ASSOCIATION
                                             MEMORANDUM OPINION*
v.   Record No. 0981-02-1                         PER CURIAM
                                              SEPTEMBER 24,2002
KURT F. STALCUP


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Todd G. Patrick; Mark S. Davis; Carr &
             Porter, LLC, on briefs), for appellants.

             (Mary G. Commander, on brief), for appellee.


     Universal Living and its insurer (hereinafter referred to

as "employer") contend the Workers' Compensation Commission

erred in denying its application alleging a change in condition

on the ground that employer failed to prove that Kurt F.

Stalcup's (claimant) current disability was not causally related

to his compensable May 22, 2000 injury by accident.        Upon

reviewing the record and the parties' briefs, we conclude that

this appeal is without merit.     Accordingly, we summarily affirm

the commission's decision.     Rule 5A:27.

     "General principles of workman's compensation law provide

that 'in an application for review of any award on the ground of


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
change in condition, the burden is on the party alleging such

change to prove his allegations by a preponderance of the

evidence.'"    Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.

459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight

Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d

570, 572 (1986)).   Unless we can say as a matter of law that

employer's evidence sustained its 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 May 2000, claimant, a carpenter, sustained a compensable

back injury while installing a Jacuzzi in a house.   Prior to

that accident, claimant had back surgery in 1998.    After the

1998 surgery, claimant returned to full-duty work as a carpenter

and participated in bowling, baseball, and softball activities.

     Dr. Colin Hamilton, an orthopedist, began treating claimant

on June 16, 2000, upon a referral from Dr. Randall Fedro, who

examined claimant immediately after the accident.    Dr. Hamilton

suspected claimant had degenerative disc disease with a probable

acute annular disc tear.   A June 7, 2000 MRI, reviewed by

Dr. Hamilton, showed that "definite recurrent HNP cannot be

verified."    Claimant's condition continued to worsen, and

Dr. Hamilton recommended physical therapy.

     Claimant underwent an epidural steroid injection, but

continued to have pain through September and October 2000.
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After a second injection, he began having right-sided symptoms.

After a third injection, claimant's leg pain resolved, but he

continued to suffer from back pain.    Dr. Hamilton opined that

"it would be difficult to state that [claimant's] continuing low

back symptoms are specifically related to his putting the

Jacuzzi into the frame on 5-19-00 and more likely to be

secondary to the chronic degenerative disc disease of his lumbar

spine."

     In Dr. Hamilton's May 4, 2001 deposition, based upon the

lack of appreciable findings on the June 2000 MRI, Dr. Hamilton

reiterated that claimant's continuing back problems were not

related to the May 2000 accident, but rather were related to his

degenerative disc disease.

     On June 1, 2001, Dr. Grant Skidmore, a neurosurgeon,

examined claimant upon referral from Dr. Fedro.   Dr. Skidmore

was aware of the history of claimant's May 2000 accident, his

subsequent treatment, as well as his 1998 back surgery.

Dr. Skidmore ordered a repeat MRI, which showed an area at the

L3-4 level that "appears to represent a small disc protrusion or

disc fragment" that was not "seen with certainty on the previous

study."

     On September 13, 2001, Dr. Skidmore opined that the May

2000 compensable accident exacerbated claimant's back condition,

causing claimant's current symptoms.   Dr. Skidmore noted that

claimant was doing well and not receiving any treatment before
                            - 3 -
the May 2000 accident, but had suffered from back symptoms since

then.

        Based upon this record, the commission found that employer

failed to prove that claimant's continuing problems were not the

result of the May 2000 compensable accident.    As fact finder,

the commission weighed the medical evidence, accepted

Dr. Skidmore's opinion, and rejected the contrary opinion of

Dr. Hamilton.    "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).

Dr. Skidmore's opinion was based on a more definitive MRI study

not available to Dr. Hamilton.    Moreover, as the commission

noted, claimant had "continuous problems since the May 2000

accident compared with his stable condition before the

accident."    Accordingly, based upon this record, we cannot find

as a matter of law that employer's evidence sustained its burden

of proof.

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

                                                           Affirmed.




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