COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

BRADFORD S. DAME 

v. Record No. 3129-96-1 MEMORANDUM OPINION*

 PER CURIAM 

LOCKWOOD CARPETS, INC. MAY 27, 1997 

AND 

STATE FARM INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (John H. Klein; Matthew H. Kraft; Rutter & 

Montagna, on brief), for appellant. 

 (Ruth Nathanson; Midkiff & Hiner, on brief), 

for appellees. 

 Bradford S. Dame (claimant) contends that the Workers' 

Compensation Commission (commission) erred in not awarding him 

compensation benefits after July 3, 1995 based upon its finding 

that he unjustifiably refused medical treatment. 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. 

 "General principles of workman's 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 his 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) (quoting Pilot Freight 

 

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

designated for publication. 
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Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 

572 (1986)). Unless we can say as a matter of law that 

claimant'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). 

 On September 12, 1992, claimant sustained an injury by 

accident arising out of and in the course of his employment to 

his back and knee. Pursuant to awards of the commission, 

claimant received temporary total and temporary partial 

disability benefits for various periods of time following his 

injury. On March 3, 1995, claimant filed an application seeking 

an award of temporary total disability benefits commencing 

December 28, 1994. 

 The medical evidence showed that on January 17, 1995, after 

working briefly as a painter's assistant, claimant returned to 

Dr. Douglas Griffin, complaining of increased back pain and an 

inability to work. Dr. Griffin diagnosed myofascial low back 

pain and prescribed physical therapy and medication. When next 

examined by Dr. Griffin on May 23, 1995, claimant's condition 

remained unchanged. Dr. Griffin then referred claimant to the 

Medical College of Virginia Pain Management Center (MCV) for 

evaluation and treatment, and recommended that claimant not work 

until seen at MCV. Claimant testified that Dr. Griffin told him 

he would make an appointment at MCV for claimant. Neither Dr. 
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Griffin nor employer ever made an appointment for claimant at 

MCV. 

 On June 12, 1995, Dr. Griffin wrote to claimant's attorney, 

reiterating that he had "literally transferred" claimant's care 

to MCV and that claimant should not return to work until seen at 

MCV. At no time after May 23, 1995 did claimant contact MCV for 

an appointment nor did he ever return to Dr. Griffin for 

treatment of his back condition, although he saw Dr. Griffin in 

April 1996 for an unrelated shoulder problem. 

 Based upon this record, the commission found that "[w]hile 

the claimant did not affirmatively refuse any medical treatment 

provided by the employer, he also made no effort to secure an 

appointment at MCV, even after his attorney was advised by Dr. 

Griffin on June 12, 1995, that he had transferred the claimant's 

care to MCV." Recognizing that it might have taken several weeks 

to secure an appointment at MCV, the commission awarded temporary 

total disability benefits to claimant for a period of three weeks 

after June 12, 1995, terminating benefits as of July 3, 1995. 

The commission held that claimant failed to prove continuing 

disability after that date. 

 Based upon claimant's failure to seek medical treatment for 

his compensable injuries from May 23, 1995, when Dr. Griffin 

referred him to MCV, to the June 27, 1996 hearing date, the 

commission was entitled to conclude that claimant failed to prove 

continuing disability after July 3, 1995. As the commission 
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noted, it is not required to "presume a continuing disability." 

Based upon the lack of evidence of a continuing disability after 

July 3, 1995, we cannot find as a matter of law that claimant 

proved he was entitled to an award of temporary total disability 

benefits after that date. 

 Accordingly, we affirm the commission's decision. 

 Affirmed.