                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bumgardner, Humphreys and Senior Judge Hodges


LENA D. CLAY
                                             MEMORANDUM OPINION*
v.   Record No. 2995-01-3                         PER CURIAM
                                                MARCH 12, 2002
TULTEX CORPORATION AND
 UNDERWRITERS SAFETY & CLAIMS, INC.


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Rhonda L. Overstreet; Lumsden, Overstreet &
             Hansen, on brief), for appellant.

             (James A. L. Daniel; Elizabeth B. Carroll;
             Daniel, Vaughan, Medley & Smitherman, P.C.,
             on brief), for appellees.


     Lena D. Clay (claimant) contends the Workers' Compensation

Commission erred in finding that she failed to prove she

sustained a change-in-condition.     Consequently, the one-year

statute of limitations contained in Code § 65.2-501 applied to

bar the commission from considering her claims filed on January

21, June 7, and December 15, 2000, requesting temporary partial

disability benefits from November 27, 1999 through May 14, 2000.

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.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On appeal, we view the evidence in the light most favorable

to the prevailing party below.    R.G. Moore Bldg. Corp. v.

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

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence.    See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

     The commission ruled that the evidence established that

claimant's condition both before and after her permanency award

remained the same.    Therefore, the limitation period contained

in Code § 65.2-501 applied to bar her claims for additional

disability benefits, which were not filed within one year of

September 17, 1998.   In so ruling, the commission found as

follows:

                We recognize that following the
           doctor's award of permanency, the claimant
           was diagnosed with plantar fascitis, and
           later accepted for a time a lower-paying job
           that required less walking. However, the
           record does not suggest that these problems
           were caused by any "change in condition"
           such that the two-year statute of Code
           § 65.2-708 would apply. Although the
           claimant and her husband testified that it
           was their understanding that Dr. Wagner
           causally related her plantar fascitis to her
           compensable knee problems, this testimony is
           contradicted by the doctor's treatment notes
           and his clear deposition testimony to the
           contrary. Indeed, despite their testimony,
           Dr. Wagner's notes do not refer to any knee
           examination on that date, and he testified
           that he did not examine her for her
           compensable injuries. Thus, from [sic]
           there is absolutely no medical evidence
           suggesting that [the claimant] suffered any
           change in [her] compensable condition within
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             one year from the last date for which
             compensation was paid.

                  Further, Dr. Wagner clearly opined that
             the claimant has not, at any point, suffered
             a post-permanency change in her compensable
             condition or her permanent impairment
             rating. The record establishes that the
             claimant's knee symptoms have waxed and
             waned both before and after the doctor
             issued his permanency opinion. Her symptoms
             appeared to correspond with the level of her
             work exertion. The doctor testified that he
             has consistently suggested - - both before
             and after his permanency opinion - - that
             the claimant find employment that required
             less walking, because it would be medically
             beneficial to her knee. The claimant's
             testimony and the doctor's notes corroborate
             that assertion. However, Dr. Wagner also
             clearly testified that he never placed
             medical limitations on her ability to walk,
             and never suggested that she discontinue her
             pre-permanency work for the employer. This
             standing recommendation existed before the
             permanency award was issued.

     The commission's findings are supported by credible

evidence, including Dr. Wagner's medical records, opinions, and

deposition testimony.    "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).    As fact finder, the

commission was entitled to accept Dr. Wagner's testimony and to

reject claimant's testimony to the contrary.    "In determining

whether credible evidence exists, the appellate court does not

retry the facts, reweigh the preponderance of the evidence, or

make its own determination of the credibility of the witnesses."

                                 - 3 -
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d

32, 35 (1991).

     Because the commission's findings are supported by credible

evidence, we will not disturb them on appeal.   Accordingly, we

affirm the commission's decision holding that the one-year

statute of limitations contained in Code § 65.2-501 applied and,

therefore, claimant failed to timely file her claim.

                                                         Affirmed.




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