COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

JAMES D. WAGNER 

v. Record No. 1844-95-4 MEMORANDUM OPINION*

 PER CURIAM 

JETT MECHANICAL, INC. MARCH 5, 1996 

AND 

OHIO CASUALTY INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (Jerry O. Talton, on brief), for appellant. 

 (Dawn E. Boyce; Trichilo, Bancroft, McGavin, 

Horvath & Judkins, on brief), for appellees. 

 James D. Wagner ("claimant") contends that the Workers' 

Compensation Commission erred in granting the change in condition 

application filed by Jett Mechanical, Inc. and its insurer 

(hereinafter collectively referred to as "employer") and in 

terminating his compensation benefits as of April 6, 1994. 

Specifically, claimant argues that the commission should have 

required employer to file a Petition to Vacate the September 29, 

1993 award, on the basis of fraud, mutual mistake, or imposition. 

 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. 

 

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

designated for publication. 

 "'Where . . . causal connection between an industrial 

accident and disability has been established by . . . entry of an 
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award, an employer has a right to apply for termination of 

benefits upon an allegation that the effects of the injury have 

fully dissipated and the disability is the result of another 

cause.'" Suite v. Clinchfield Coal Co., 8 Va. App. 554, 555, 383 

S.E.2d 21, 22 (1989) (quoting Celanese Fibers Co. v. Johnson, 229 

Va. 117, 120, 326 S.E.2d 687, 690 (1985)), aff'd on rehearing en 

banc, 9 Va. App. 492, 389 S.E.2d 187 (1990). 

 In its April 8, 1994 change in condition application, 

employer sought to terminate claimant's benefits on the basis 

that his current disability was unrelated to his August 6, 1993 

compensable injury by accident. Employer filed Dr. Ramon 

Jenkins' February 24, 1994 report in support of its application. 

 Dr. Jenkins' February 24, 1994 report makes clear that, 

although he accepted claimant's assertion of an electrical shock 

accident occurring at work on August 6, 1993, he did not believe 

that the consequences of that accident were severe enough to 

result in ongoing disability. Thus, Dr. Jenkins concluded that 

claimant had completely recovered from the August 6, 1993 

industrial accident. In addition, Dr. Jenkins' testimony 

revolved around his opinion that claimant's disability, if any, 

as of February 24, 1994, was not related to his exposure to an 

electrical shock on August 6, 1993. 

 Dr. Jenkins' reports and testimony were sufficient to raise 

the issue of lack of causal connection between the industrial 

accident and claimant's continuing disability. Therefore, the 
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commission did not err in refusing to require employer to file a 

Petition to Vacate the award, and in considering its change in 

condition application on the merits using a preponderance of the 

evidence standard, rather than a clear and convincing evidence 

standard. 

 Because claimant did not appeal the commission's finding 

that his current disability was unrelated to his compensable 

industrial accident on its merits, we will not review this 

finding on appeal. 

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

 Affirmed.