COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Salem, Virginia 

GARY LEE SLOAS 

v. Record No. 0596-95-3 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

BABCOCK AND WILCOX JULY 23, 1996 

 CONSTRUCTION COMPANY and 

 PACIFIC EMPLOYERS INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 William H. Fralin, Jr. (Jolly, Place, Fralin & 

Prillaman, P.C., on briefs), for appellant. 

 Ruth N. Carter (William B. Judkins; Midkiff & 

Hiner, on brief), for appellees. 

 On June 16, 1993, claimant, Gary Lee Sloas, sustained an 

injury to his lower back while working for employer, Babcock and 

Wilcox Construction Company. Employer accepted claimant's claim 

and, accordingly, the commission awarded claimant temporary total 

disability benefits beginning June 30, 1993. Except for a 

three-week period in September 1993, claimant received temporary 

total benefits until June 1994. 

 This matter came before the commission on employer's June 

1994 application for hearing alleging claimant was able to return 

to work as of June 1, 1994 and seeking to terminate the temporary 

total benefits award. Accordingly, employer bore the burden of 

proving a change in conditions by a preponderance of the 

 

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

designated for publication. 
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evidence. E.g., Rossello v. K-Mart Corp., 15 Va. App. 333, 335, 

423 S.E.2d 214, 216 (1992) (quoting Pilot Freight Carriers, Inc. 

v. Reeves, 1 Va. App. 435, 438, 339 S.E.2d 570, 572 (1986)). To 

meet its burden, employer had to prove claimant was "`able fully 

to perform the duties of his preinjury employment.'" Celanese 

Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 

(1985) (quoting Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284 

S.E.2d 605, 607 (1981)). 

 The commission found employer met its burden. On appeal, 

this Court construes the evidence in the light most favorable to 

the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 

10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The 

commission's findings of fact will be upheld if supported by 

credible evidence. James v. Capitol Steel Constr. Co., 8 Va. 

App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 I. 

 Claimant contends that the opinion of Dr. Thomas Love, the 

physician who released claimant to return to work, does not 

provide credible evidence to support the commission's decision on 

the ground that Dr. Love was not aware of claimant's regular duty 

work requirements. We disagree. 

 The evidence shows that claimant's job as a boilermaker 

required him to work in tight places and do a lot of bending and 

climbing. Claimant testified that he often had to lift objects 

weighing over fifty pounds, that he had to lift and use various 
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tools weighing between 100 and 200 pounds, and that he had to 

build scaffolding, which required constant pushing of pieces of 

material weighing forty to sixty pounds. 

 Admittedly, claimant did not provide his particular job 

requirements to Dr. Love; nor was Dr. Love given a description of 

claimant's particular job. However, Dr. Love released claimant 

without restriction. Accordingly, whether Dr. Love was familiar 

with claimant's particular duties is immaterial. He released 

claimant to perform any task. 

 Furthermore, the evidence shows that Dr. Love was generally 

familiar with the job duties of a boilermaker. He had other 

patients who were boilermakers, and he described the job as 

involving continuous heavy lifting of objects weighing over 

seventy-five pounds. The commission found that Dr. Love was 

sufficiently familiar with claimant's job duties. This finding 

is supported by credible evidence. The specific description 

given by claimant was within the parameters of Dr. Love's more 

general description. 

 II. 

 Claimant also contends that Dr. Love's opinion does not 

provide credible evidence to support the commission's decision on 

the ground that Dr. Love did not examine claimant on May 18, 

1994, the day he released him. We disagree. 

 Dr. Love, an orthopedic surgeon, first examined claimant in 

March 1994 on referral from Dr. Philip Fioret, claimant's 
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treating physician. At that point, Dr. Love found no objective 

evidence of an orthopedic problem related to claimant's 

condition. Dr. Love noted that the results of claimant's 

neurological examination and MRI, conducted the previous January 

and October, respectively, were normal. However, based entirely 

on claimant's complaints of pain, Dr. Love diagnosed him with 

"mechanical low back pain," a condition which Dr. Love 

acknowledged exhibits no objective physical signs. 

 Dr. Love recommended aggressive physical therapy for 

claimant and ordered objective testing of claimant's complaints 

of pain in the form of a Functional Capacity Evaluation ("FCE"). 

 Dr. Love referred claimant to physical therapy, but claimant 

continually missed the appointments. In May 1994, Christopher L. 

Crank, the physical therapist, conducted the FCE. Dr. Love read 

the FCE results as showing no objective indication that claimant 

suffered back pain. 

 Claimant again saw Dr. Love May 18, 1994. Claimant stated 

that the second visit lasted five minutes and that Dr. Love did 

not examine him. However, Dr. Love changed his diagnosis of 

mechanical back pain. This change was based on the absence of 

objective signs of pain as demonstrated by inconsistencies in the 

FCE, claimant's positive Waddell's testing results, the results 

of other pain evaluations, and claimant's having done certain 

automotive work inconsistent with the pain he described. Dr. 

Love noted, "[a]t this point there are no restrictions," and 
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released claimant to return to regular, "full duty" work on June 

1, 1994 following two weeks of work hardening. 

 Credible evidence supports the commission's finding that Dr. 

Love was sufficiently familiar with claimant's physical condition 

to release him to return to work. Dr. Love examined claimant in 

March and found nothing wrong, other than claimant's complaints. 

 When the physical therapy tests later revealed no objective 

support for claimant's complaints and produced results which were 

inconsistent with claimant's descriptions of pain, Dr. Love 

concluded that his original diagnosis of mechanical back pain was 

incorrect. Additionally, none of claimant's previous physicians 

had detected any objective findings to support the claimed 

injury. 

 Given his examination in March which revealed no objective 

indication of injury and the subsequent tests results which 

demonstrated no objective indication of pain, Dr. Love could 

reasonably concluded that claimant could return to work. The May 

18 release simply reaffirmed the absence of an injury. 

 III. 

 Claimant also contends that Dr. Love's opinion does not 

provide credible evidence to support the commission's decision on 

the ground that Dr. Love's release was prospective. We disagree. 

 As claimant contends, the commission has held that a 

prospective release to return to work is insufficient. See

Counterman v. Providence Electric Corp., 71 O.I.C. 81, 82 (1992); 
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Haggins v. American Academy of Otolaryngology, 70 O.I.C. 293, 

295-96 (1991). Dr. Love released claimant to return to work on 

June 1, following two weeks of work hardening. 

 Credible evidence supports the commission's finding that the 

release was not conditioned on claimant's attending work 

hardening or successfully completing it. Dr. Love's office note 

of May 18 states, "At this point, there are no restrictions." 

Dr. Love testified that he prescribed the work hardening because 

he thought claimant was not in good physical condition and would 

benefit from the program. Accordingly, the release was effective 

May 18, and the prescribed work hardening was inconsequential to 

that decision. 

 IV. 

 Claimant also contends that the commission erred in using 

Crank's physical therapy reports for any purpose. We find no 

basis for claimant's contention. The opinion of the commission 

specifically states that the commission considered Crank's 

reports "only so far as Dr. Love relied upon or incorporated them 

in his own reports." 

 V. 

 Claimant next contends that Dr. Love's opinion does not 

provide credible evidence to support the commission's decision on 

the ground that it was based, in part, on the findings of a 

physical therapist. We disagree. 

 Dr. Love testified that his decision to release claimant to 
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return to work was based upon his own evaluation. Contrary to 

claimant's assertion, the evidence does not suggest that Dr. Love 

merely adopted Crank's "opinion." Rather, the evidence supports 

the finding that Dr. Love considered Crank's findings, as well as 

other medical evidence, in reaching his conclusion that claimant 

suffered no injury. 

 VI. 

 Claimant also contends that the commission erred in 

crediting the opinion of Dr. Love over that of Dr. Fioret. We 

disagree. 

 The commission based its conclusion that claimant was able 

to return to pre-injury employment on the "lack of objective 

findings of injury by any physician who has examined him since 

the time of the initial injury." On this point, the commission 

did not credit the opinion of Dr. Love over that of Dr. Fioret. 

Rather, the commission accepted the uncontradicted opinions of 

both Drs. Love and Fioret, as well as that of Dr. Powell, that 

claimant exhibited no objective indicia of injury. 

 The only relevant distinction between the opinions of Drs. 

Love and Fioret was that Dr. Fioret was persuaded by claimant's 

subjective complaints while, in light of the physical therapy 

reports demonstrating no objective signs of pain, Dr. Love was 

not. On this disputed point, the commission accepted Dr. Love's 

opinion. A question raised by conflicting medical opinion is a 

question of fact to which we must defer. E.g., City of Norfolk 
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v. Lillard, 15 Va. App. 424, 429-30, 424 S.E.2d 243, 246 (1992). 

 VII. 

 Claimant also contends that the commission erred in basing 

its findings on evidence of claimant's failure to cooperate with 

medical treatment. The record fails to support this conclusion. 

 It is clear that, because employer never raised the issue, 

evidence of claimant's refusal of medical treatment was 

irrelevant for purposes of barring continued compensation. See

Code § 65.2-603(B); Biafore v. Kitchen Equipment Co., 18 Va. App. 

474, 478, 445 S.E.2d 496, 498 (1994). The commission did not 

consider such evidence. The opinion of the commission 

specifically states, "the claimant's alleged failure to cooperate 

with medical treatment is not an issue." 

 However, claimant contends that Dr. Love's opinion was 

improperly based in part on evidence of claimant's failure to 

cooperate with treatment and, therefore, does not provide 

credible evidence to support the commission's decision. We 

disagree. Claimant's argument goes to the weight that Dr. Love's 

opinion should be accorded. However, it is peculiarly the 

function of the fact finder to determine what weight, if any, 

should be accorded to such evidence. See, e.g., McPeek v. P.W. & 

W. Coal Co., 210 Va. 185, 188, 169 S.E.2d 443, 445 (1969); Board 

of Supervisors v. Taylor, 1 Va. App. 425, 431, 339 S.E.2d 565, 

568 (1986). Here, it was the prerogative of the commission to 

credit Dr. Love's opinion that claimant exhibited no objective 
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signs of injury or pain, notwithstanding his consideration of 

claimant's failure to attend physical therapy in reaching that 

opinion. 

 VIII. 

 Finally, claimant contends the commission erred in finding 

that he had not attempted to return to work since October of 

1993. We agree with claimant that there is a notation in the 

medical records that claimant attempted to return to work in 

March 1994. However, as both parties agree, the issue of 

claimant's attempts to return to work is irrelevant. Because the 

commission's opinion was based on the absence of objective 

findings of injury by any physician and the opinion of Dr. Love 

that claimant's physical therapy reports provided no objective 

indication of pain, any error the commission made in its finding 

with respect to the dates claimant attempted to return to work is 

harmless. 

 For the foregoing reasons, the opinion of the commission is 

affirmed. 

Affirmed.