                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


SHIRLEY M. THOMAS
                                             MEMORANDUM OPINION*
v.   Record No. 1293-00-4                         PER CURIAM
                                               NOVEMBER 7, 2000
PRINCE WILLIAM COUNTY SCHOOL BOARD


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Herbert S. Rosenblum, on brief), for
             appellant.

             (Thomas C. Palmer, Jr.; Brault, Palmer,
             Grove, Zimmerman, White & Steinhilber, LLP,
             on brief), for appellee.


     Shirley M. Thomas (claimant) contends that the Workers'

Compensation Commission erred in finding that (1) she failed to

prove that back surgery proposed by Dr. Ian Gordon was causally

related to her compensable October 4, 1995 injury by accident;

and (2) her application alleging a change-in-condition was

barred by the applicable statute of limitations contained in

Code § 65.2-708.     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.
                     I.   Surgery (Causation)

     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 her burden of proving that the proposed back surgery

was causally related to her October 4, 1995 injury by accident,

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 prove that Dr. Gordon's

proposed L3-4 surgical treatment was causally related to her

October 4, 1995 compensable injury by accident, the commission

found as follows:

          The proposed surgery is to correct
          degenerative disc disease at L3-4. The
          overwhelming weight of the evidence shows
          the disc degeneration was neither caused,
          accelerated, nor aggravated by the
          industrial accident. The records of the
          four doctors[, Drs. Victor N. Guerrero,
          Herbert E. Lane, Jr., Anthony Debs, and John
          A. Bruno, Jr.,] who did extensive orthopedic
          and neurological work-ups of the injury
          failed to find any disc disease at L3-4.
          Even Dr. Gordon could not state to a
          reasonable medical probability that the disc
          degeneration pre-existed the claimant's
          injury.

               Dr. Gordon, who did not see the
          claimant until almost three years after the
          accident, can only state that the "patient
          has evidence of degeneration of the 3-4 disc

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          some of which may have pre-existed her
          injury." Dr. Bruno, on the other hand,
          clearly states in his February 23, 1999,
          report that there is "no evidence that the
          trauma of 10/4/95 produced whatever the
          disease process is at the 3-4 disk."

               Given the claimant's extensive
          treatment and evaluation by four orthopaedic
          surgeons, a neurosurgeon, and other medical
          specialists with multiple diagnostic
          work-ups, we find it significant that no
          specialist diagnosed or even suggested disc
          degeneration and disease at the L3-4 level
          before Dr. Gordon. Although Dr. Gordon
          argues in his letter of March 15, 1999 to
          claimant's counsel that "[i]t is clear by
          history and by discography that this
          patient's mild degeneration has been
          severally [sic] aggravated by her injury and
          represents a work injury," he cannot state
          to a reasonable medical probability that the
          disc degeneration pre-existed her injury.

               . . . [T]he first discogram, performed
          on July 15, 1998 was characterized as an
          "unremarkable exam" with "no evidence of
          extravasation." The radiologist noted in
          his operative report that injection at the
          L3-4 level reproduced pain in the mid back,
          which the patient alleged was "similar in
          character and location to her present pain
          problem." However, when the claimant was
          initially seen by Dr. Gordon in June 1998,
          Dr. Gordon found that most of the claimant's
          problems were related to the low back and
          particularly noted severe pain and
          tenderness over the L5-S1 level as well as
          tenderness over her coccyx.

     Based upon Dr. Bruno's February 23, 1999 opinions and the

lack of any persuasive medical evidence of disc disease at the

L3-4 level before October 4, 1995 and before Dr. Gordon began

treating claimant, the commission could conclude that claimant



                              - 3 -
failed to prove that the October 4, 1995 accident either caused,

aggravated, or accelerated the L3-4 disc degeneration, for which

Dr. Gordon proposed performing surgery.    We note that an MRI of

claimant's lumbar spine, performed on July 19, 1996, nine months

after her industrial accident, was "essentially normal," with

"no evidence of disc herniation, significant degenerative change

or herniated nucleus pulposus."    As fact finder, the commission

was entitled to weigh the medical evidence, to accept Dr.

Bruno's opinions, and to give little probative weight to Dr.

Gordon's opinions.   "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).

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

that claimant's evidence sustained her burden of proof.

                     II.   Statute of Limitations

     Code § 65.2-708(A) provides in its pertinent part that

"[n]o . . . review [of any award on the ground of

change-in-condition] shall be made after twenty-four months from

the last day for which compensation was paid, pursuant to an

award under this title . . . ."

     It was undisputed that December 15, 1995 was the last day

for which compensation was paid to claimant pursuant to an

award.   If any payments were made after that date, there is no

evidence in the record to establish that they were paid pursuant


                                 - 4 -
to an award. 1   Claimant did not file her application alleging a

change-in-condition until March 18, 1999, more than twenty-four

months after December 15, 1995, the last day for which

compensation was paid pursuant to an award.    Accordingly, the

commission did not err in finding that claimant's application

was untimely.

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

                                                          Affirmed.




     1
       Although the record contains an Agreed Statement of Fact
and Supplemental Memorandum of Agreement apparently sent to
claimant in August 1997 by the employer's loss control
specialist, those documents were never executed by claimant and
no award was ever entered by the commission with respect to
those documents.

                                - 5 -
