COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

NORA HAMEL 

 MEMORANDUM OPINION*

v. Record No. 0832-98-1 PER CURIAM 

 NOVEMBER 10, 1998 

BEACHSIDE L C AND TWIN CITY 

 FIRE INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Nora Hamel, pro se, on brief). 

 (F. Nash Bilisoly; Kelly O. Stokes; 

Vandeventer Black, on brief), for appellees. 

 Nora Hamel ("claimant") contends that the Workers' 

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

failed to prove that (1) she was totally disabled beginning June 

20, 1996 as a result of her compensable July 7, 1995 injury by 

accident; and (2) she marketed her residual work capacity. 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. See Rule 5A:27. 

 On July 7, 1995, claimant sustained a compensable abdominal 

injury arising out of and in the course of her employment as a 

hostess for Beachside L C ("employer"). Employer accepted the 

injury as compensable. Pursuant to the parties' Memorandum of 

Agreement, the commission entered an award on November 15, 1995, 

providing for temporary total disability benefits beginning 

 

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

designated for publication. 
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August 6, 1995. On August 8, 1996, employer filed an application 

seeking termination and/or suspension of that award on the ground 

that claimant returned to work on May 13, 1996. 

 Before the hearing on employer's August 8, 1996 application, 

the parties stipulated that claimant returned to work with 

Charles Barker Toyota on May 10, 1996 and worked full-time as a 

salesperson through June 19, 1996, without informing employer. 

Based upon that stipulation, the commission terminated claimant's 

compensation benefits as of May 12, 1996, the last date employer 

paid compensation to claimant. The commission then properly 

placed the burden on claimant to prove her claim that she again 

became totally disabled from work beginning June 20, 1996, as a 

result of her compensable injury. 

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

to the prevailing party below. See 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 claimant's evidence 

sustained her 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). 

 Dr. Nelson M. Karp, who treated claimant following her July 

7, 1995 compensable abdominal injury, referred claimant to Dr. 

Roy Oswaks, a general surgeon, on April 29, 1996. On May 2 and 

3, 1996, Dr. Oswaks examined claimant. Dr. Oswaks evaluated 

claimant's abdominal pain via pelvic and inguinal ultrasounds, 
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but could not find any evidence of pathology in that area. Dr. 

Oswaks referred claimant to Dr. Douglas Schreiber, an 

orthopedist. Dr. Oswaks opined that claimant should not work 

until a diagnosis was made. 

 On May 6, 1996, Dr. Schreiber examined claimant, but could 

find nothing wrong with her. Dr. Schreiber diagnosed persistent 

left groin pain of undetermined etiology. A subsequent lumbar 

spine MRI and a whole body bone scan were both within normal 

limits. 

 On May 29, 1996, Dr. Oswaks examined claimant, whose 

symptoms remained unchanged from his previous examinations. 

 On June 7, 1996, claimant fell down a flight of stairs and 

sought emergency room treatment at the Virginia Beach General 

Hospital, complaining of neck and back pain. The clinical 

examination revealed that her abdomen was "nontender." Claimant 

was diagnosed with acute musculoskeletal pain, status post fall. 

 On June 18, 1996, Dr. John Everett examined claimant. 

Claimant reported a history of a miscarriage and abdominal 

symptoms. Dr. Everett also noted that claimant had suffered from 

low back pain and lower abdominal pain since the June 7, 1996 

slip and fall. Dr. Everett diagnosed low back pain/left lower 

quadrant pain related to the June 7, 1996 slip and fall. 

 On June 22, 1996, claimant returned to the Virginia Beach 

General Hospital emergency room. At that time, she reported a 

history of abdominal pain and possible pregnancy. She also 
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reported a miscarriage that had occurred several months before 

and complained of left groin pain occasionally radiating into her 

left abdomen which "[a]ctually started the other day, has been 

worse when she sits." Claimant reported the June 7, 1996 slip 

and fall to hospital personnel, but she did not report the July 

7, 1995 injury. 

 On July 25, 1996, claimant returned to Dr. Schreiber, 

complaining of severe pain in her left groin area. Dr. Schreiber 

could find no objective cause for claimant's symptoms related to 

her skeleton or joints. Thus, he did not place her on any 

restrictions from work or other activities. 

 On August 29, 1996, claimant returned to Dr. Oswaks, with 

continuing complaints of left groin pain. Dr. Oswaks opined that 

he felt some weakness, "but no definite hernia." Dr. Oswaks 

referred claimant to Dr. Tracy Wright, a gynecologist, for an 

evaluation in order to rule out any possible gynecological 

problem. Dr. Wright's examination did not reveal any 

gynecological cause for claimant's symptoms. 

 Claimant did not return to Dr. Oswaks until April 3, 1997. 

At that time, claimant again complained of pain in the left 

femoral canal. Dr. Oswaks opined that claimant remained 

disabled. When Dr. Oswaks examined claimant again on April 7, 

1997, her pain was not as severe. Dr. Oswaks suspected that 

claimant might have a left femoral hernia, but he refused to 

commit to that opinion. Dr. Oswaks opined that claimant was 
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disabled by her pain and might require surgery. On April 8, 

1997, Dr. Oswaks opined that claimant was disabled as a direct 

result of her 1995 accident. Dr. Oswaks recommended surgical 

exploration to define the hernia and repair it. 

 In his April 24, 1997 deposition, Dr. Oswaks testified that 

the physicians who had examined claimant could not find any 

gynecological or orthopedic cause for claimant's symptoms. Dr. 

Oswaks opined that as of May 3, 1996, "from a mechanical 

standpoint," claimant could return to work, although her level of 

pain may have prevented her from doing so. Dr. Oswaks was 

"unclear" as to whether claimant returned to work in May 1996. 

He also did not know whether claimant worked during June 1996. 

In April 1997, claimant told Dr. Oswaks that she had performed 

some work, but he was unaware of the exact dates. Claimant also 

told Dr. Oswaks about the June 7, 1996 fall and emergency room 

treatment. Dr. Oswaks stated that claimant told him the June 7, 

1996 injury had something to do with her knee or extremity. Dr. 

Oswaks denied that claimant told him she had exacerbated her 

abdominal injury as a result of the June 1996 fall. Dr. Oswaks 

never reviewed the Virginia Beach General Hospital records or Dr. 

Everett's records related to the June 7, 1996 slip and fall. 

 Based upon this record, the commission concluded that "the 

medical evidence fails to establish that the claimant suffers a 

disability causally related to the 1995 incident beginning June 

20, 1996." The commission rejected Dr. Oswaks's opinion. 
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 "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 weigh the medical evidence and to reject Dr. Oswaks's 

opinion, because the record established that his opinion was 

based upon an inaccurate and incomplete medical history. See

Clinchfield Coal Co. v. Bowman, 229 Va. 249, 251-52, 329 S.E.2d 

15, 16 (1985). Absent Dr. Oswaks's opinion, no evidence proved 

that claimant's alleged disability beginning June 20, 1996 was 

causally related to her compensable July 7, 1995 injury by 

accident. Accordingly, we cannot find as a matter of law that 

claimant's evidence sustained her burden of proof. 

 Because our holding on the causation issue is dispositive of 

this appeal, we need not address the marketing issue. 

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

 Affirmed.