COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

DENNIS D. POLESKY 

 MEMORANDUM OPINION* BY 

v. Record No. 2468-96-4 JUDGE JAMES W. BENTON, JR. 

 APRIL 15, 1997 

ALEXANDRIA EXXON AND 

 UNITED STATES FIDELITY & GUARANTY COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Christopher Paul Schewe (Cake, Rhoades & 

Schewe, P.C., on brief), for appellant. 

 Joseph F. Giordano (Semmes, Bowen & Semmes, 

on brief), for appellees. 

 Dennis D. Polesky appeals from the commission's ruling that 

he failed to prove a change in condition and a compensable 

disability beginning on September 1, 1995. Polesky contends that 

the commission improperly invoked the principle of res judicata

and that no credible evidence supported the commission's 

decision. For the reasons that follow, we affirm the decision. 

 I. 

 Viewing the evidence in the light most favorable to the 

employer, the party who prevailed before the commission, see

Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 

339 S.E.2d 916, 916 (1986), the record proved that Polesky was 

hired by the employer in 1985 as a gas station attendant. 

Because Polesky had informed the employer that he had seven prior 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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hernia operations which permanently restricted him from lifting 

more than fifteen pounds, the employer hired him in a light duty 

capacity. On September 17, 1994 Polesky lifted one of the gas 

station's bay doors and felt a sharp pain in the left side of his 

lower back. 

 Polesky initially received treatment from Dr. Henry 

McCleary, a chiropractor. Dr. McCleary excused Polesky from work 

until September 24, 1994 and referred Polesky to Dr. Abdorasool 

Janati, a neurologist. Dr. Janati requested an MRI, which, when 

performed on October 24, 1994, showed "no evidence for disc 

herniations." Several weeks later, Dr. Janati performed an EMG 

study and concluded that Polesky had "a mild L3 radiculopathy on 

the left." Dr. Janati also performed a somatosensory evoked 

response study of Polesky's lower extremities and reported that 

the result was normal. 

 When the employer offered Polesky a panel of physicians, 

Polesky selected Dr. Wayne C. Lindsey, an orthopedist. Dr. 

Lindsey evaluated Polesky on November 1, 1994 and referred 

Polesky to physical therapy for hamstring stretching and lumbar 

strengthening. However, Dr. Lindsey reported that Polesky was 

capable of resuming his normal light duty work activities. 

 Polesky was delayed in his return to work because of 

renovations at the gas station, and he returned to work on 

December 29, 1994. After returning to work, Polesky participated 

in a full-time work hardening program at the Rehability Center 
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that consumed his work days from January 4, 1995 to January 20, 

1995. The final report from the Rehability Center recommended 

that Polesky return to his full-time former employment. 

 In February 1995, Dr. Lindsey reviewed the reports from the 

Rehability Center and released Polesky to his regular duties. 

Polesky continued his full-time employment duties until March 3, 

1995. Polesky testified that on March 3 he experienced pain when 

raising doors. 

 Noting that Dr. Lindsey had directed Polesky to return to 

work, Dr. McCleary opined on March 3, 1995 that Polesky had been 

"forced back to full time work [too] quickly" and that working 

had aggravated his condition. He recommended that Polesky be put 

on full disability status until further notice. On March 3, Dr. 

Janati also opined that Polesky was totally disabled. 

 On March 22, 1995, Polesky filed a claim for benefits and 

alleged that he was disabled beginning September 17, 1994, and 

continuing. Dr. Janati reported again on August 4, 1995, shortly 

before the evidentiary hearing, that Polesky "continues to be 

totally disabled." Following an evidentiary hearing on August 8, 

1995, the deputy commissioner found that Dr. Lindsey, the last 

physician who examined Polesky, opined that Polesky was able to 

work and that no physician had examined Polesky after March 3. 

Although the deputy commissioner had as evidence Dr. McCleary's 

March 3, 1995 opinion and Dr. Janati's March 3, 1995 and August 

4, 1995 opinions that Polesky was disabled, the deputy 
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commissioner ruled "that the evidence does not establish 

continuing total work incapacity from March 3, 1995." The deputy 

commissioner entered an award for compensation for total work 

incapacity from January 11, 1995 through January 24, 1995. 

Polesky did not appeal from that decision. 

 Later, Polesky filed a change in condition application, 

seeking total disability benefits from March 3, 1995 and 

continuing. At the March 28, 1996 evidentiary hearing on that 

application, Polesky testified that he had not suffered any 

additional injuries after August 1995. The evidence also proved 

that Dr. McCleary examined Polesky on September 12, reported that 

his disability status had not changed, and continued treating 

Polesky. On September 14, 1995, Dr. Janati reported that he 

examined Polesky, noted that his symptoms were "essentially 

unchanged," and opined that Polesky remained totally disabled. 

 Dr. Mirza Baig examined Polesky in October 1995 and 

suggested that Polesky consider percutaneous lumbar discectomy 

because, among other reasons, the MRI given in 1994 suggested a 

disc herniation. While continuing to treat Polesky, Dr. Janati 

recommended that he receive epidural steroid blocks and concurred 

with Dr. Baig that surgery might be necessary. However, Dr. 

Lindsey examined Polesky in November 1995 and restated his 

opinion that Polesky could continue his normal work activities. 

 Following the evidentiary hearing, the deputy commissioner 

ruled that Polesky has been disabled since September 1995, that 
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the MRI confirmed the disc herniation, and that Polesky was 

entitled to temporary total disability benefits from September 1, 

1995 and continuing until his conditions change. The commission, 

however, ruled that Polesky had not met his burden of proving a 

change in condition and reversed the deputy commissioner's 

decision. In so ruling, the commission made the following 

findings: 

 We find that the medical reports from 

the treating physicians demonstrate no actual 

change in condition since [Polesky's] 

disability status was determined by the 

Deputy Commissioner in the Opinion issued 

August 31, 1995. The claimant in these 

proceedings essentially asks the Commission 

to reevaluate evidence that is now restated 

by his treating physicians. There is no new 

evaluation based on evidence not earlier 

available or considered by the physicians, or 

by the Deputy Commissioner when the case was 

earlier decided. We therefore find no change 

in condition, and the claimant is barred by 

res judicata from a reconsideration of 

disability status that is unchanged since 

March 3, 1995. 

 II. 

 "General principles of work[er]'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)). "[I]t is fundamental that a finding of fact made by 
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the Commission is conclusive and binding upon this court on 

review." Virginia Dept. of Corrections v. Powell, 2 Va. App. 

712, 714, 347 S.E.2d 532, 533 (1986). Equally fundamental is the 

principle that "[a] question raised by conflicting medical 

opinion is a question of fact." Id.

 The record clearly established that following the first 

evidentiary hearing the deputy commissioner found that Dr. 

Janati's and Dr. McCleary's diagnoses were not persuasive. The 

deputy commissioner gave little weight to their reports, 

including Dr. Janati's report dated August 4, 1995, that Polesky 

continued to be disabled. Instead, the deputy commissioner 

relied upon Dr. Lindsey's opinion that Polesky was not disabled. 

 Thus, the deputy commissioner found that Polesky was entitled to 

compensation for two weeks in January 1995 and proved no 

continuing disability after that period. 

 Polesky's failure to appeal those findings is significant 

because in September of 1995, a period in which Polesky contends 

that he experienced a change in condition, Dr. Janati reported 

that Polesky's "symptoms remain[ed] essentially unchanged" and 

that he "remain[ed] totally disabled." Likewise, Dr. McCleary 

examined Polesky in September 1995 and also reported that 

"Polesky was placed in a total disability status on March 3, 

1995" and that he continued to be disabled. Both doctors 

believed that Polesky's condition had continued to be the same 

since March 3, 1995. Their reports fail to establish that 
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Polesky's condition had significantly changed since March 3, 

1995, the date the deputy commissioner found was the end of 

Polesky's disability. 

 The commission properly found that, to the extent that Dr. 

Janati and Dr. McCleary based their post-August 1995 reports upon 

their findings that Polesky was disabled on March 3, 1995 and 

continued to be so disabled, Polesky was barred by res judicata

from seeking to relitigate the initial deputy commissioner's 

finding that the evidence at the August 8, 1995 hearing did not 

prove disability after March 3, 1995. The evidence at that 

hearing, including a report from Dr. Janati dated August 1995, 

was found insufficient to prove a disability by a preponderance 

of the evidence. 

 "The true test of the conclusiveness of 

a former judgment with respect to particular 

matters is identity of issues. If a 

particular point or question is in issue in 

the second action, and the judgment will 

depend on the determination of the particular 

point or question, a former judgment between 

the same parties will be final and conclusive 

in the second [action] if that same point was 

in issue and adjudicated in the first suit." 

Allegheny Airlines, Inc. v. Merillat, 14 Va. App. 341, 344, 416 

S.E.2d 467, 469 (1992) (citation omitted). The commission 

properly concluded that to the extent that Dr. Janati and Dr. 

McCleary based their post-August 1995 findings of disability on 

their diagnoses that Polesky's March 3, 1995 disability continued 

unchanged, those reports were being used by Polesky contrary to 

principles of res judicata. 
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 III. 

 On appeal, we must determine if there is credible evidence 

in the record to sustain the commission's findings that Polesky 

did not prove a change in condition. See Sneed v. Morengo, Inc., 

19 Va. App. 199, 204-05, 450 S.E.2d 167, 170-71 (1994). "'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.'" Falls Church Constr. Corp. v. Valle, 21 Va. App. 

351, 359, 464 S.E.2d 517, 522 (1995) (citation omitted). The 

opinion of the commission must be affirmed if it is based upon 

credible evidence in the record. See Marketing Profiles, Inc. v. 

Hill, 17 Va. App. 431, 435, 437 S.E.2d 727, 731 (1993) (en banc). 

 The evidence in the record proved that Dr. Lindsey, who 

opined that Polesky was not disabled in February 1995, also 

examined Polesky in November 1995. Dr. Lindsey opined that 

Polesky had chronic lumbar strain consistent with his 

pre-employment condition, that he had "no evidence of 

radiculopathy that would warrant any surgical treatment," and 

that Polesky "clearly demonstrates capabilities that are 

consistent with his pre-injury level of activity." Based on 

those opinions, Dr. Lindsey stated that Polesky "can resume his 

pre-injury level of work activity." 

 The commission acknowledged that Dr. Mirza Baig examined 

Polesky and recommended surgery. However, the commission found 
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that Dr. Baig's diagnosis was based in large measure upon 

interpretations earlier reported by Drs. Janati and McCleary and 

upon an MRI study that was performed in 1994, before the first 

evidentiary hearing. Thus, the commission found Dr. Baig's 

reports to be less persuasive than the reports of Dr. Lindsey, 

which were based upon a more recent examination of Polesky. 

 "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). The commission 

resolved the conflict in the medical evidence when it found Dr. 

Lindsey's opinion to be more persuasive. That finding is binding 

upon us. "The fact that there is contrary evidence in the record 

is of no consequence if there is credible evidence to support the 

commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va. 

App. 890, 894, 407 S.E.2d 32, 35 (1991). We cannot say that the 

commission's factual finding that the medical evidence failed to 

prove a change of condition is unsupported by credible evidence 

in the record. 

 For the foregoing reasons, we affirm the commission's 

decision. 

 Affirmed.