COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

JOSE MARIA DEJESUS VENTURA 

 MEMORANDUM OPINION*

v. Record No. 2108-97-4 PER CURIAM 

 FEBRUARY 3, 1998 

DITTMAR COMPANY AND PENNSYLVANIA 

 MANUFACTURERS' ASSOCIATION 

 INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Simon M. Osnos, on brief), for appellant. 

 No brief for appellees. 

 Jose Maria Dejesus Ventura (claimant) appeals a decision of 

the Workers' Compensation Commission terminating his award of 

temporary total disability benefits and denying his request for a 

change in treating physicians. Claimant contends that the 

commission erred in finding that (1) he was able to return to his 

pre-injury employment as of December 3, 1996; and (2) he was not 

entitled to a change in treating physicians. Finding no error, 

we affirm. 

 I. 

 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). "[I]t 

is fundamental that a finding of fact made by the Commission is 

conclusive and binding upon this court on review. A question 

 

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

designated for publication. 
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raised by conflicting medical opinion is a question of fact." 

Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 

(1986). 

 As fact finder, the commission was entitled to accept the 

opinions of the treating physicians, Drs. Joseph White and Ronald 

Uscinski, and to reject the contrary opinion of Dr. Lewis B. 

Eberly. Drs. White and Uscinski based their opinion that 

claimant was capable of returning to his pre-injury employment 

upon diagnostic testing and their evaluation of claimant's 

condition and improvement since the compensable accident. On the 

other hand, Dr. Eberly, a physician chosen by claimant on his 

own, examined claimant on one occasion and relied solely upon 

claimant's articulated history without the benefit of the 

treating physicians' medical records. Neither Dr. White nor Dr. 

Uscinski could find any objective basis for claimant's persistent 

symptoms. The opinions of Drs. White and Uscinski constitute 

credible evidence to support the commission's decision that 

claimant was able to return to his pre-injury employment as of 

December 3, 1996. "The fact that there is contrary evidence in 

the record is of no consequence if there is credible evidence to 

support the commission's finding." Wagner Enters., Inc. v. 

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 

 II. 

 Whether a treating physician has released or abandoned his 

patient generally is determined by the express intent of the 
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physician. In some cases, the total circumstances must be 

analyzed in order to determine whether the discharge, release, or 

abandonment of the patient was intended. This is a factual 

determination which must be proved by clear and convincing 

evidence. See Jensen Press v. Ale, 1 Va. App. 153, 157, 336 

S.E.2d 522, 524 (1985). 

 In denying claimant's request for a change in treating 

physicians, the commission found as follows: 

 There is no evidence in the record that 

supports the claimant's request for a change 

in physicians. Both Dr. White and Dr. 

Uscinski have documented their treatment of 

the claimant and it appears from the record 

to be appropriate and adequate. We see no 

evidence that corroborates the need for the 

claimant to seek treatment from another 

physician. 

 The commission's findings are amply supported by the medical 

records and will not be disturbed on appeal. Because claimant 

failed to present any clear and convincing evidence of 

abandonment or inadequate treatment by Drs. White and Uscinski, 

we cannot find as a matter of law that the commission erred in 

denying claimant's request for a change in treating physicians. 

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

 Affirmed.