                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


MIKE A. SHARP
                                             MEMORANDUM OPINION*
v.   Record No. 2842-98-2                         PER CURIAM
                                                 MAY 18, 1999
AGGLITE OF VIRGINIA AND
 ROYAL INSURANCE COMPANY OF AMERICA


           FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

             (Christopher C. Booberg; Geoffrey R. McDonald
             and Associates, on brief), for appellant.

             (William C. Walker; Donna White Kearney;
             Taylor & Walker, P.C., on brief), for
             appellees.


     Mike A. Sharp contends that the Workers’ Compensation

Commission erred in holding that he failed to prove that he was

totally disabled from December 2, 1997 through February 7, 1998,

and partially disabled beginning February 8, 1998, as a result of

his compensable December 17, 1996 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).      Unless


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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 reversing the deputy commissioner and holding that Sharp

failed to sustain his burden of proof, the commission found as

follows:

                The report issued by Dr. [Gary L.]
           Baker in January 1998 recording severe
           restrictions is entitled to little weight,
           because it was not prepared in conjunction
           with a contemporaneous medical examination.
           Dr. Baker had not seen [Sharp] since
           September or early October 1997, according
           to the medical records filed with the
           Commission, as well as the plain and
           uncontradicted testimony of [Sharp].
           Therefore, Dr. Baker had no reasonable basis
           on that later date to revise his earlier
           report, especially one so inconsistent with
           prior findings that [Sharp] could be
           released from medical care. This opinion
           revised by Dr. Baker in January 1998 is not
           explained or clarified or justified, and we
           accord it no probative weight. Similarly,
           Dr. Baker's later report of a permanent
           residual condition is not credible evidence
           that the claimant is unable to perform his
           pre-injury work, absent a contemporaneous
           medical evaluation or functional analysis to
           show such alleged residual incapacity.

     "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).   An unexplained conflict existed between


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Dr. Baker's pre-1998 opinion that Sharp could perform his

pre-injury work without restrictions as of October 6, 1997, and

Dr. Baker's January and February 1998 opinions to the contrary.

Moreover, unlike the October 1997 opinion, Dr. Baker's later

opinions were unsupported by contemporaneous medical

examinations.

     Based upon these unexplained inconsistencies, the

commission, in its role as fact finder, could properly deny

probative weight to Dr. Baker's January and February 1998

reports.   Absent those reports, we cannot hold, as a matter of

law, that Sharp's evidence sustained his burden of proof.

     Accordingly, we affirm the commission's decision.

                                                         Affirmed.




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