                   COURT OF APPEALS OF VIRGINIA


Present:   Chief Judge Moon, Judge Bray and Senior Judge Duff


BUREN GOINGS

v.   Record No. 2909-95-4                     MEMORANDUM OPINION *
                                                  PER CURIAM
NATIONAL SOCIETY OF PUBLIC ACCOUNTANTS          APRIL 16, 1996
AND
UTICA NATIONAL INSURANCE GROUP


                                    FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
            (James F. Green; Ashcraft & Gerel, on
            brief), for appellant.

            (Charles F. Midkiff; Scott C. Ford; Midkiff
            & Hiner, on brief), for appellees.



     Buren Goings ("claimant") contends that the Workers'

Compensation Commission ("commission") erred in finding that he

failed to prove (1) that his left shoulder condition constituted

a compensable consequence of his January 4, 1993 right shoulder

injury; or (2) that he sustained an injury by accident to his

left shoulder arising out of and in the course of his employment

on January 4, 1993.   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.     Rule

5A:27.

     On appeal, we view the evidence in the light most favorable

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

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

"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).      Unless 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.     Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173

S.E.2d 833, 835 (1970).
                              Background

        On January 4, 1993, claimant sustained a right shoulder

rotator cuff tear while in the course of and arising out of his

employment.    Employer accepted claimant's right shoulder injury

as compensable and the commission entered an award on July 13,

1993.    On December 22, 1994, claimant filed an application

alleging that he also injured his left shoulder as a result of

the January 4, 1993 accident, or in the alternative, that his

left shoulder condition was a compensable consequence of his

January 4, 1993 right shoulder injury.

        Claimant testified that he felt sharp pain in his right

bicep at the time of the accident.     However, he admitted that he

did not feel any pain in his left arm on January 4, 1993.      On

February 2, 1993, Dr. Rida N. Azer, an orthopedic surgeon, began

treating claimant.    On March 4, 1993, Dr. Azer performed surgery

on claimant's right shoulder.    After the surgery, claimant wore a

sling for three weeks.    Claimant attended physical therapy two



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times per week from March 1993 through August 1993.

     Claimant stated that, from January 4, 1993 until the end of

August 1993, he had to use his left hand almost exclusively

because of the weakness in his right arm.   Claimant contended

that he began to experience sharp pains and muscle spasms in his

left shoulder approximately two to three months after his

surgery.   The severity of the pain caused claimant to wake up at

night screaming.
     The March 3, 1993 Memorandum of Agreement signed by claimant

contains no indication of any left shoulder injury nor did

claimant mention any injury to his left shoulder during his

February 11, 1993 recorded statement.   In addition, claimant's

physical therapy records from March 26, 1993 through August 18,

1993 do not contain any mention of left shoulder complaints.

Claimant did not mention left shoulder pain or problems to Dr.

Moosa Kazim, who examined claimant at employer's request on

August 3, 1993 and March 29, 1994.

     On August 31, 1993, Dr. Azer noted that, after a physical

therapy session where claimant used weights from fifty to ninety

pounds, his left shoulder showed a range of motion of zero to 160

degrees with pain in the abduction arc.   Dr. Azer's records do

not contain any subsequent mention of left shoulder pain until

June 21, 1994.   Left shoulder x-rays taken on July 12, 1994

revealed multiple cysts and degenerative changes in the AC joint.

An August 4, 1994 MRI revealed a complete tear of the




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supraspinatus tendon along with an irregularity of the superior

labrum suggestive of a tear.

     In his March 15, 1995 progress note, Dr. Azer opined that

claimant "has significant residuals from his injury of 1-4-93.

He has impingement syndrome of the left shoulder and severe

adhesive capsulitis.   He is awaiting surgical intervention

. . . ."    On March 31, 1995, based solely upon claimant's

statements that he had symptoms in both shoulders at the time of

the January 4, 1993 accident, Dr. Azer opined that claimant

injured his left shoulder in the January 4, 1993 compensable

accident.   Dr. Azer also stated that the treatment of claimant's

right shoulder, which caused him to overuse his left shoulder,

resulted in an increase in the rotator cuff tear and the left

shoulder impingement syndrome.
     On February 8, 1995, claimant told Dr. Kazim that his left

shoulder pain began in July or August 1994 as he reached into the

backseat of his convertible.   Claimant denied left shoulder

problems prior to July 1994.   Dr. Kazim diagnosed impingement

syndrome of the left shoulder, which he opined was not related in

any manner to the January 4, 1993 right shoulder injury.

     Claimant admitted that he experienced severe left shoulder

pain during the convertible incident on July 4, 1994.   However,

he maintained that his left shoulder pain began before that

incident, and that he told Dr. Kazim that the incident was one of

the many times he had felt sharp pain.




                                  4
                     Compensable Consequence

     The commission found that claimant failed to prove a causal

connection between his initial compensable injury and his

subsequent left shoulder condition.   In so ruling, the commission

took into account claimant's failure to report left shoulder pain

until June 1994, long after his initial injury.   The commission

inferred from claimant's testimony and the medical records that

he most likely sustained the left shoulder injury in July 1994

when he reached into the backseat of his convertible.
     In its role as fact finder, the commission was entitled to

reject claimant's testimony concerning when his left shoulder

pain began, in light of the lack of corroboration from the

medical records and the physical therapy notes.   "It lies within

the commission's authority to determine the facts and the weight

of the evidence . . . ."   Rose v. Red's Hitch & Trailer Servs.,

Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990).

     In addition, the commission was entitled to accept Dr.

Kazim's opinion over that of Dr. Azer, where Dr. Azer's opinion

was based upon an inaccurate history.   Unlike Dr. Kazim, Dr. Azer

was not aware of the July 1994 incident.   Moreover, Dr. Azer was

under the inaccurate impression that claimant suffered from left

shoulder symptoms at the time of the January 4, 1993 accident,

contrary to claimant's own testimony.   Where a medical opinion is

based upon an incomplete or inaccurate medical history, the

commission is entitled to conclude that the opinion is of little



                                 5
probative value.   See Clinchfield Coal Co. v. Bowman, 229 Va.

249, 251-52, 329 S.E.2d 15, 16 (1985).   The commission could

reasonably infer from the evidence that claimant sustained the

left shoulder injury during the July 1994 convertible incident.

"Where reasonable inferences may be drawn from the evidence in

support of the commission's factual findings, they will not be

disturbed by this Court on appeal."   Hawks v. Henrico County Sch.

Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
     Based upon this record, we cannot find as a matter of law

that claimant's evidence proved that his left shoulder condition

constituted a compensable consequence of his January 4, 1993

right shoulder injury.

                         Injury by Accident

     "In order to carry his burden of proving an 'injury by

accident,' a claimant must prove the cause of his injury was an

identifiable incident or sudden precipitating event and that it

resulted in an obvious and sudden mechanical or structural change
in the body."   Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d

858, 865 (1989).

     The commission found that claimant's evidence failed to

prove that he sustained an injury by accident to his left

shoulder on January 4, 1993.   In so ruling, the commission stated

as follows:
          The medical records do not corroborate the
          claimant's account of such an injury to his
          left shoulder in 1993. As the deputy
          commissioner points out, the employee did not
          report left shoulder problems until 17 months



                                 6
            subsequent to the compensable injury by
            accident to his right shoulder. Further, the
            testimony reflects that the employee quite
            likely sustained an injury by accident on
            July 4, 1994, while loosening the latch on
            his convertible.


     Claimant presented no medical evidence to support a finding

of a sudden mechanical or structural change in his left shoulder

occurring on January 4, 1993 or during the months immediately

thereafter.   Moreover, he admitted that, at best, his left

shoulder pain did not begin until May or June 1993, at least four

months after the January 4, 1993 accident.   The commission was

entitled to reject Dr. Azer's March 1995 opinion because Dr. Azer

was unaware of the convertible incident and because his opinion

was based upon his inaccurate belief that claimant experienced

left shoulder symptoms at the time of the January 4, 1993

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

that claimant met his burden of proving he sustained an injury by

accident to his left shoulder on January 4, 1993.

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

                                              Affirmed.




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