                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Retired Judge Cole*


PAUL THOMAS BURKE
                                             MEMORANDUM OPINION **
v.   Record No. 1138-01-3                         PER CURIAM
                                              SEPTEMBER 11, 2001
STAUNTON GOODYEAR AND
 NATIONWIDE MUTUAL INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Roger A. Ritchie; Roger Ritchie & Partners,
             P.L.C., on brief), for appellant.

             (Thomas G. Bell, Jr.; Timberlake, Smith,
             Thomas & Moses, P.C., on brief), for
             appellees.


     Paul Thomas Burke contends that the Workers' Compensation

Commission erred in finding (1) he failed to prove that his

herniated cervical discs were causally related to his

compensable March 27, 1998 injury by accident; and (2) he was

not entitled to a change in treating physicians.        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.



     *
       Retired Judge Marvin F. Cole took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
     **
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                           I.   Causation

     "General principles of workman's compensation law provide

that '[i]n an application for review of any award on the ground of

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 Burke'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 Burke's change-in-condition application, the

commission found as follows:

           [W]e must decide whether the herniated discs
           revealed for the first time on the December
           1999 MRI are causally related to the work
           injury. We first note no evidence of signs
           or symptoms that have been attributed to any
           dermatome serviced by the nerve roots
           exiting the spinal column at these two
           levels. There are no documented complaints
           of neck pain at any level until more than
           one year after the industrial accident. We
           have no opinion before us from which we can
           conclude that the claimant's continuing
           symptoms in the right hand are attributable
           to these two paracentral disc herniations
           which are located superior to the levels
           where the claimant suffers from degenerative
           changes. It appears that Dr. [Thomas]
           Spicuzza's opinion may be based on the

                                - 2 -
           assumption that the claimant has
           consistently complained of neck pain since
           the accident. This assumption is not
           consistent with contemporaneous medical
           records. We cannot determine whether
           Dr. Spicuzza has had the opportunity to
           review the chiropractic records and those of
           Dr. [Lee] Hereford. We cannot determine the
           basis and reasoning underlying
           Dr. Spicuzza's expressed opinion on the
           issue of causation. We find that the
           claimant has not met his burden on this
           issue . . . .

     The commission also found that Dr. Hereford, who was

Burke's treating orthopedist, opined on July 7, 1999 that the

cervical radiculopathy, if present at the C8 level "is probably

related to arthritis in the neck from years of running around."

Dr. Hereford also reported that he could not relate Burke's

condition to his job injury.

     "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).   Thus, "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).   Furthermore, it is well established that "'when an

attending physician is positive in his diagnosis . . ., great

weight will be given by the courts to his opinion.'"      Pilot

Freight Carriers, 1 Va. App. at 439, 339 S.E.2d at 572

(citations omitted).   The commission, as fact finder, weighed


                               - 3 -
the medical evidence.    In doing so, it was entitled to give more

weight to Dr. Hereford's opinion than to the opinion of Dr.

Spicuzza.   Dr. Spicuzza did not examine Burke until more than

one year after the compensable injury by accident.     In addition,

Dr. Spicuzza's report failed to provide any rationale or

underlying explanation for his one-word answer ("Yes") to the

question of whether Burke's complaint of neck injury was related

to the injury by accident, giving little probative weight to Dr.

Spicuzza's opinion.

     The record contains no documented complaint of neck pain or

injury until over one year from the date of the compensable

injury by accident.    The commission's decision is supported by

Dr. Hereford's opinion and the lack of any basis or explanation

for Dr. Spicuzza's cursory opinion.     Thus, we cannot conclude as

a matter of law that Burke's evidence sustained his burden of

proof.

                 II.   Change in Treating Physicians

     In denying Burke's request for a change in treating

physicians, the commission found as follows:

            Dr. Hereford has opined that he has no
            further treatment options that could be
            offered the claimant. A careful review of
            the medical record reveals that, with the
            exception of the MRI which confirmed
            degenerative changes in the cervical spine
            already identified by x-ray, the treatment
            regimen undertaken by Dr. Spicuzza is
            essentially the same as that prescribed by
            Dr. Hereford. There is no evidence to

                                - 4 -
          suggest inadequate treatment or failure to
          provide needed diagnostic studies or
          specialized treatment relative to the
          injuries causally related to the work
          injury.

     Because we affirm the commission's decision that Burke

failed to prove his neck problems were causally related to his

compensable accident, we hold that no change in treating

physicians was warranted in this case.   Burke failed to prove

Dr. Hereford abandoned Burke or refused to provide him with

appropriate treatment with respect to the injuries that were

causally related to the compensable accident.   Accordingly, we

cannot conclude as a matter of law that Burke was entitled to a

change in treating physicians.

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

                                                           Affirmed.




                                 - 5 -
