COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges

JACK W. SHELAR MEMORANDUM OPINION * v. Record No. 2303-03-2 PER CURIAM DECEMBER 16, 2003 UKROP’S SUPER MARKETS, INC. AND UNDERWRITERS SAFETY AND CLAIMS, INC.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION (Christopher C. Booberg; Thorse n & Scher, L.L.P. , on brief), for appellant. (M. Janet Palmer; Harrell & Cham bliss, L.L.P., on brief), for appellees.
Jack W. Shelar (claimant) contends th e Workers’ Compensation Commission erred in denying his June 12, 2002 change-in-condition appl ication on the ground that it was not timely filed. Claimant argues that the commission erred infinding that he failed to prove that (1) his original Claim for Benefits arising out of his compensable December 4, 1994 injury by accident included a claim for a brain inju ry; (2) Ukrop’s Super Markets, Inc. (employer) was on notice of a possible brain injury; (3) his current brain in jury symptoms were causally related to his compensable December 7, 1994 injury by acciden t; and (4) there was evidence that he complained of or received treatment for symptoms other than headache pain before July 25, 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.- 2 - On appeal, we view the evidence in the li ght 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). Unless we can say as a matter of law that claima nt’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 denying claimant’s application, the commission found as follows: [T]he claimant sought to hold the employer responsible for neurological treatment for cogniti ve difficulties. We agree with the deputy commissioner that the cl aimant did not prove that his cognitive difficulties, for which he did not receive treatment until more than five years after the a ccident, were the result of the accident. Although Dr. [Gregory] O’Shanick opined on May 13, 2001, that the claimant’s symptoms were caused by a mild traumatic brain injury suffered on December 7, 1994, he did not provide any explanation for the de layed onset of symptoms. Thus, we agree that a preponderance of the evidence did not show that the claimant suffered from a traumatic brain injury on December 7, 1994, that manifested itself withcognitive dysfunction beginning in 2000. We also agree that the claimant did not file a timely claim for benefits for a traumatic brai n injury resulting in cognitive dysfunction. The first treatment for these symptoms occurred in 2000, and thus, according to Shawley [v. Shea-Ball Constr. Co., 216 Va. 442, 219 S.E.2d 849 (1975),] his Claim was not timely. We need not reach the issue of whether claima nt filed a timely claim for a brain injury. Even assuming, without deciding, that he did s o, we cannot find as a matter of law that his evidence sustained his burden of proving that his brain injury/symptoms were causally related to his December 7, 1994 injury by accident. “Medical evidence is not necessarily conclu sive, 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). The commission weighed the medical evidence, and determined that Dr. O’Shanick’s opinion, the only medical opinion in the reco rd relating claimant’s symptoms to a mild traumatic brain injury sustained on December 7, 1994, was not sufficient to- 3 - sustain claimant’s burden of proof by a prepondera nce of the evidence. In light of the almost five-year gap between claimant’s last post-acc ident medical treatment on November 8, 1995 and his medical treatment beginning on July 26, 2000; th e lack of any explanation from claimant or Dr. O’Shanick for that time gap; and Dr. Edward Peck’s opinion that there was no causal connection between claimant’s December 7, 1994 work-related accident and his reported cognitive complaints, the commission, as fact fi nder, was entitled to gi ve no probative weight to Dr. O’Shanick’s opinion. Absent Dr. O’Shanick’ s opinion, there is no ev idence in the record to support a causal connection between claimant’s November 7, 1994 compensable injury by accident and his brain injury/symptoms. Because the medical evidence was subject to its factual determination, we cannot find as a matter of law that claimant sustained his bur den of proving a causal connection between his November 7, 1994 compensable injury by accident and his brain injury symptoms. For these reasons, we affirm the commission’s decision. Affirmed.