COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Coleman 

Argued at Salem, Virginia 

JERAL R. ROBBINS 

 MEMORANDUM OPINION* BY 

v. Record No. 0354-97-3 JUDGE JAMES W. BENTON, JR. 

 SEPTEMBER 30, 1997 

PENN LINE, INC. and 

 HOME INDEMNITY COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Paul L. Phipps (Lee & Phipps, P.C., on 

brief), for appellant. 

 Monica L. Taylor (Thomas H. Miller; Gentry, 

Locke, Rakes & Moore, on brief), for 

appellees. 

 Jeral R. Robbins contends that the Workers' Compensation 

Commission erred in ruling that his change in condition 

application was barred by res judicata. Robbins also contends 

that the commission erred in ruling that he had not proved a 

change in condition related to his injury by accident. For the 

reasons that follow, we affirm the commission's denial of 

compensation benefits. 

 Robbins sustained an injury to his back on January 31, 1995 

when he fell on ice at work. At the evidentiary hearing on 

Robbins' original claim for compensation, his employer, Penn 

Line, Inc., stipulated that Robbins suffered an injury by 

accident and defended on the ground that Robbins was not 

incapacitated for work after March 1995. The evidence proved 

 

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

designated for publication. 
 2 

that Robbins was treated in the hospital emergency room and then 

received treatment from Dr. Patrick Molony. Dr. Molony referred 

Robbins to an orthopaedist and a neurosurgeon. 

 The orthopaedist diagnosed a mild sprain of the thoracic and 

lumbar spine. After review of test reports, the orthopaedist 

released Robbins to return to light duty work in March. Because 

of continuing complaints of pain, Robbins revisited the 

orthopaedist in late March and was informed that he could return 

to light duty work on April 3. In May 1995, Dr. Molony opined 

that Robbins was unable to return to work because of back pain 

and noted that Robbins "needs neurosurgical evaluation." 

 Robbins was then tested and examined by several 

neurosurgeons. In August 1995, Dr. Daniel Robertson reported "no 

indication for neurosurgical intervention," noted that Robbins 

had "reached maximum medical improvement," and transferred 

Robbins back to Dr. Molony. Dr. Molony referred Robbins to 

another neurosurgeon, Dr. Ken Smith, who diagnosed lumbar 

spondylosis, low back pain and bilateral par defect. Dr. Smith 

referred Robbins to Dr. John Marshall. 

 In December 1995, Dr. Marshall reviewed Robbins' medical 

records, examined Robbins on two occasions and ordered further 

testing. He diagnosed Robbins as suffering sensory peripheral 

polyneuropathy. Dr. Marshall reported that he was "not convinced 

that the current symptomatology represents continued sequela from 

a 1/31/95 fall" and that "[t]he peripheral polyneuropathy . . . 
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probably would not stem from the original fall." Dr. Marshall 

also reported that testing would be required to "further define 

the extent of the [polyneuropathy] pathology." Dr. Marshall 

noted that Robbins was not disabled from work as a result of his 

fall in January 1995 and stated that any restrictions from work 

resulted from causes unrelated to Robbins' fall. He opined that 

"[t]he peripheral polyneuropathy . . . probably would not stem 

from the original fall as the extensive diagnosis involves 

pathological processes which occur independent of acute trauma." 

 Based on the evidence at the hearing, the deputy 

commissioner found that Robbins "was incapacitated for work as a 

consequence of this accident through December 15, 1995 when Dr. 

Marshall determined that [Robbins'] ongoing disability was not 

related to the January 31, 1995 accident." Thus, the deputy 

commissioner awarded Robbins temporary total disability benefits 

from February 1, 1995 until December 15, 1995. Robbins did not 

seek review of that ruling. 

 On May 2, 1996, Robbins filed an application for a change in 

condition and sought benefits beginning on March 21, 1996 and 

continuing thereafter. At the evidentiary hearing on this 

application, Robbins testified that his pain had worsened since 

January of 1996 and was constant. Robbins testified that the 

pain was in his back muscles, that he had received cortisone 

injections for spasms he was having in his back, and that he 

began using a walker because the use of his cane put too much 
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pressure on his back. Robbins also testified that he was being 

treated for depression and anxiety caused by "the worrying and 

the pressure." 

 The evidence proved that Robbins had continued to be treated 

by Dr. Molony for his physical ailments and, in addition, had 

begun to visit Dr. B. Wayne Lanthorn, a psychologist. Dr. 

Lanthorn saw Robbins on April 12, 1996 and diagnosed Robbins as 

having "Mood Disorder Due to Chronic Low Back Pain and 

Limitations, With Depressive Features." Dr. Lanthorn wrote a 

letter on July 31, 1996 in which he opined that "Robbins' 

psychiatric difficulties are a direct result and followed an 

injury that occurred to him while working." In August, Dr. 

Molony also reported that "Robbins has been unable to work since 

1-31-95 due to an injury on the job at that time." 

 On August 6, 1996, Dr. Marshall reviewed Robbins' history, 

including the reports of Dr. Molony and Dr. Lanthorn, and 

examined Robbins again. Dr. Marshall stated that he did "not 

have any new recommendations from [his] 12/6 and 12/15/95 

report[s]" and reiterated his opinion that Robbins' symptoms were 

not all related to his work injury. 

 Based on this evidence, the deputy commissioner made the 

following findings: 

 As Dr. Marshall's opinion as well as the 

opinion of Dr. Molony are essentially 

unchanged from their opinions previously 

expressed and considered in the February 6, 

1996 opinion, we conclude that their opinions 

do not establish a change in condition 

causally related to the January 31, 1995 
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accident. It was found in the previous 

opinion that [Robbins'] disability after 

December 15, 1995 was unrelated to the 

January 31, 1995 accident. It was found that 

[Robbins'] ongoing disability was 

attributable to causes other than the January 

31, 1995 accident. Since that opinion was 

not appealed, those findings are final and 

binding. 

 . . . However, we do not believe that 

. . . the previous . . . decision would 

necessarily preclude finding a change in 

condition based on psychological opinion; 

however, in this case, Dr. Lanthorn's opinion 

is of little probative value since he was not 

provided with the medical records nor was he 

aware of the previous finding that [Robbins'] 

disability after December 15, 1995 was caused 

by factors other than the January 31, 1995 

accident . . . . [Robbins'] claim must be, 

and it hereby is, denied. 

The full commission affirmed that decision. 

 "General principles of [workers'] 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 [the] 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) (citation omitted). "Unless 

we can say as a matter of law that the evidence submitted by 

[Robbins] was sufficient to sustain his burden, then the 

Commission's finding . . . is binding and conclusive upon us." 

Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 

833, 835 (1970). 

 When the deputy commissioner rendered a decision following 

the evidentiary hearing on Robbins' initial claim for 
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compensation for his injury by accident, the deputy commissioner 

resolved a conflict in the medical opinions. Dr. Molony reported 

that Robbins was disabled from employment and that his disability 

was continuing. However, Dr. Marshall reported that Robbins' 

disability from work as caused by his injury by accident of 

January 1995 had resolved as of December 15, 1995 and that 

Robbins' continuing disability was not related to the January 

1995 work-related injury. The deputy commissioner accepted Dr. 

Marshall's report and did not accept Dr. Molony's report. An 

issue raised by conflicting medical opinions is a factual matter 

to be resolved by the commission. City of Norfolk v. Lillard, 15 

Va. App. 424, 429-30, 424 S.E.2d 243, 246 (1992). Robbins did 

not appeal that factual finding, which was adverse to his claim 

that his disability was continuing. 

 In his application for a change in condition, which 

commenced the proceeding from which this appeal arises, Robbins 

bore the burden of proving both that he suffered a change in 

capacity to work and that the change was due to a condition 

causally related to his compensable injury. See AMP, Inc. v. 

Ruebush, 10 Va. App. 270, 273-74, 391 S.E.2d 879, 881 (1990). 

However, Dr. Molony's reports fail to account for the deputy 

commissioner's unappealed factual finding that Robbins "was 

incapacitated for work as a consequence of [the January 1995 

work-related] accident through December 15, 1995 when Dr. 

Marshall determined that [Robbins'] ongoing disability was not 
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related to the January 31, 1995 accident." Dr. Molony reported 

in August 1996, that "Robbins has been unable to work since 

1-31-95 due to an injury on the job at that time." To the extent 

that Robbins sought to use that report to contradict the deputy 

commissioner's previous ruling that the disability that Robbins 

suffered at December 15, 1995 was unrelated to his work, the 

commission correctly ruled that the deputy commissioner's ruling 

was res judicata. See K & L Trucking Co. v. Thurber, 1 Va. App. 

213, 218-20, 337 S.E.2d 299, 302-03 (1985). 

 Furthermore, the evidence proved that on August 8, 1996 

Dr. Marshall reviewed the reports of Dr. Molony's examination of 

Robbins after January 1996, and the reports of Dr. Lanthorn's 

treatment of Robbins after January 1996. In addition, Dr. 

Marshall examined Robbins. Based upon his review of the medical 

reports and his examination of Robbins, Dr. Marshall reported 

that Robbins' low back pain had resolved prior to his December 

15, 1995 report, that Robbins' spondylolysis was not connected to 

his work-related injury, that the etiology of Robbins' sensory 

peripheral polyneuropathy was undetermined, and that he had 

nothing further to add to his earlier report. The commission 

again accepted Dr. Marshall's report and rejected Dr. Molony's 

report concerning Robbins' injury. 

 In addition, the deputy commissioner found from the evidence 

that Dr. Lanthorn had not reviewed Robbins' medical records and 

was unaware that the commission had ruled that Robbins' 
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disability at December 15 was unrelated to his work injury. On 

review, the commission also found that Dr. Lanthorn's reports 

noted that Robbins had nerve problems prior to his work-related 

injury. Dr. Lanthorn's reports simply failed to make a causal 

connection between Robbins' work-related injury and his current 

psychological condition. 

 For these reasons, we hold that the evidence did not prove, 

as a matter of law, that Robbins bore his burden of proving a 

change in condition. Accordingly, we affirm the decision. 

 Affirmed.