COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunzia ta and Bumgardner Argued at Salem, Virginia

UNINSURED EMPL OYER'S FUND MEMORANDUM OPINION * BY v. Record No. 1338-99-3 JUDGE SAM W. COLEMAN III MARCH 14, 2000 TONY ALLEN NICHOLS

FROM THE VIRGINIA WORKER S' COMPENSATION COMMISSION Patricia H. Quille n, Assistan t Attorney General (Mark L. Earley , Attorney General; John J. Beall, Jr., Se nior Assistan t Attorney General, on brief), for appellant. William H. Fralin , Jr. (Jolly , Place, Fralin & Prillaman, P.C., on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. The Uninsured Empl oyer's Fund appe als the Workers' Compensation Commission 's decision denying th e Fund's application to terminate bene fits based upon a chan ge in condition. The Fund alleged in its application that the claimant was no longer disabled from th e industrial accident and that his residual disability was unrelate d to the accident. Th e Fund argues that the commission erred in finding that it failed to prov e that as of August 27, 1998, Tony Allen Nichols wa s no longer di sabled as a- 2 - result of the co mpensable inju ry. We disagree and affirm the commission's decision. BACKGROUND Nichols was empl oyed as a mechan ic by Joseph Wright, trading as Wright's Lawn Servic e and Automotive Repair (Wrigh t). On April 20, 1996, while working for Wrig ht, Nichols was repairing a vehicle's carb uretor when the carburetor backfi red and caused flash burns over twenty percent of Nichols' body, partic ularly his right upper arm. Nichols was treated at the University of Virginia Medical Center Burn Center where he underwent skin grafts to the right upper extr emity and forear m and to the right hand and three fingers of the right hand. Nichol s filed a cl aim for and was awarded tempor ary total disabi lity benefits. Upon finding that Wright was uninsu red, the commission ordered the Fund to satisfy th e award. In June 1997, Nich ols underwent a functional capacities evaluation (FCE) which revealed that he was limited in his ability to lift with his left hand. Also, he was fifty percent deficient in right hand grip st rength and was unable to sustain a strong right hand grip for mo re than two to three seconds at one time. He was found to be limi ted in carrying things with his right hand, working overhe ad, crawling, and performing activi ties requiring fine motor coordina tion of his righ t hand. If Nich ols returned to work, the evalua tor opined that he wo uld require tools with- 3 - built-up handles and that he would be unable to perform activities requiring sustai ned or strong repe titive right hand grip strength. On July 21, 1997, th e Fund filed an Appl ication for Hearing, alleging that Ni chols was releasedto return to his pre-injury work by Dr. J. Samuel Mitchener, III, a plastic and reconstructive surgeon who had tr eated Nichols afte r the accident. Dr. Mitchener had also previously tr eated Nichols in1995 for a blunt trauma injury to the dorsum of his righ t hand, sustained while working for another employ er. In his repo rt, Dr. Mitchener concluded that Nichols was able to return "to full work ," but he noted that Nichols "may have di fficulties finding em ployment given the deficits documented in the FCE." Dr. Mi tchener opined that Nichols could perf orm "many types" of automotive and lawnmower repairs, despite the fact that he had not beenprovided a detailed job description of Nichols' pre-injurywork duties. The commission denied the Fund's application. The Fund filed a second Chan ge in Conditio n Application, alleging that Ni chols was no long er disabled as a result of the industrial accident an d, except for a residu al disability from a prior unrelated bl unt trauma injury, that Nichols would have been able to return to his pre-injury wo rk as of August 27, 1998. The Fund based its applic ation upon Dr. Mitche ner's report dated August 27, 1998.- 4 - The only evidence in the record delineat ing Nichols' pre-injury job duties is his af fidavit stating th at, as a shop mechanic and supervisor , he was required rout inely to perform many tasks involving fine manipulation of objects with bo th hands, many tasks requiring a strong right hand grip for sustaine d periods, lifting heavy obje cts from floor to wais t and carrying objects with both hands, and crawling and working ov erhead. Prior to the industrial accident, Ni chols never requ ired the use of tools with "built-up handle s" to perform his work. In June 1998, the Fu nd set forth in a lett er to Dr. Mitchener the pre-injury job du ties as described by Nichols in his affidavit. Dr . Mitchener had no other inform ation detailing Nichols' pre-injury job duties. The Fundrequested that Dr. Mitchener evalua te Nichols and respond to seve ral queries. Nichols was exam ined by Dr. Mitc hener, and in an August 27, 1998 letter, Dr. Mitche ner opined that Nich ols was not disabled due to the burn inju ry; he stated that "it appears that any disability . . . may be related to the blun t trauma injury of September 22, 1995 ." Dr. Mitchene r "strongly suspec ted" that if Nichols had only the burn injury, he would be able to return to his pre-injury status as an auto mechanic and supervis or. Dr. Mitchener furt her noted that Nichols had grip strength problems, but Dr. Mitchener attributed the problems "almost entire ly" to the blunt trauma injury ra ther than the burn in jury. Dr. Mitchener- 5 - opined that Nich ols would not like ly obtain pre-injury status and that he would ha ve permanent rest rictions based onthe lack of complete extension of the right small finger. Dr. Mi tchener noted that Nichols also de monstrated signs of peripheral nerve irritation and/or comp ression of unknown etio logy. Dr. Mitchener opined that the painNichols expe riences in the right upper extremity was eith er related to ulnar ne rve compress ion at the right elbow or medi an nerve compressio n at the wrist and recommended that Nichols obtain a co mplete neurological evaluation. The commission foun d that the Fund fail ed to prove that Nichols was able to perform his pr e-injury work. The commission noted that Nichols was able to perfor m his pre-injury work prior to the industrial ac cident despite the pr e-existing decreased range of motion in th e right fifth di git due to th e 1995 blunt trauma injury. The co mmission found that Ni chols' inability to perform his pre-in jury work is ev ident from Dr. Mi tchener's August 27, 1998 report in wh ich Dr. Mitchene r noted that Nichols still experiences gr ip strength problems, ev en though Dr . Mitchener attributed the proble ms "almost entirely to the earlier blunt trauma injury." The co mmission found that th e Fund had failed to prove that the peripher al neuropathy, which prevented Nichols from performing a number of significant pr e-injury work duties, was not related to the industri al accident. The comm ission noted that the- 6 - neuropathy was not pres ent before the industri al accident and that it was to an area of the body where Nichol s sustained extensive burns and skin grafts. ANALYSIS "In an application fo r review of an awar d on the ground of change in condit ion, the burden is on the party alle ging such change to prov e his allegation s by a preponde rance of the evidence." Pilot Freight Carriers, Inc. v. Reeves , 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986). On appeal, we view the evidence in the light most favorable to Nichols, the prevailing party. See R.G. Moore Bldg. Corp. v. Mullins , 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). We accept the commission's factual findings when they are supported by credible evidence. See James v. Capitol Steel Constr. Co. , 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). The commission foun d that the Fund fail ed to prove by a preponderance of the evidence th at Nichols' resi dual incapacity was not related to the industrial accident. The commission stated that: [T]he pre-existing [blunt trauma] injury was to the dorsum of the right hand. In the industrial accident the claimant suffered partial and full thickness burns circumferentially of the right upper extremity from the hand to the shoulder. Dr. Mitchener opined that the claimant exhibited symptoms of peripheral nerve compression at the elbow or wrist, an area encompassed by the burn injury and not by- 7 - the pre-existing injury . . . . [I]t appears that these symptoms may be tied in some fashion to the claimant's assertion that he cannot now grip with his right hand. The commission noted further that because Dr. Mitchener recommended re ferral to a neur ologist to determ ine the cause of Nichols' peripheral ne uropathy in hi s right upper ex tremity, the commission would not presume that the cond ition, which had not existed prior to the burn injury, was no t related to the burn injury. The commissionnoted that Nichols' blunt trauma injury occurred before Nichol s began working for Wright and that nothing in the record indicate s that Nichols' pre-in jury work performance was affected by th at injury. No ev idence exists to indicate that he experienced gr ip strength defi ciencies, that he was unable to perform all the fu nctions of the job, or th at he required the use of special tools. The commission articulated le gitimate reasons for giving little probative weight to Dr. Mitche ner's opinions . "Medical evidence is not necessarily conc lusive, but is subject to the commission's considerat ion and weig hing." Hungerford Mechanical Corp. v. Hobson , 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). Contrary to the Fund's contention , the burden of proof was on the Fund, whose change in condition ap plication al leged that Nichols' residual incapacity wa s unrelated to his indu strial accident, to prove that the disability resu lting from the irritation or- 8 - degeneration of the nerves in Ni chols' right handwas not caused by the industrial accident. Here, the commis sion found that the Fundfailed to carry its burden of proof in that Dr. Mitc hener's evid ence did not persuade them that Nichols' re sidual incapacity, spec ifically the lack of grip strength in the right hand, was unrelated to the industrial accident. Admittedly, Dr. Mitchener op ined that Nich ols' lack of grip strength was unrela ted to the industrial accident and that it probably was caused by "periphera l nerve irrita tion and/or compression, etiology unknown." The commissi on, however, was not required to accept Dr. Mitchene r's conclusory opinion as to causation, nor was the commission required to conclude from Dr. Mitchener's opin ion that because the et iology of the nerve irritation or de generation was unknown, th at the Fund had met its burden of provin g that the disability was not caus ed by the industrial accident. Quite simply, th e commission fo und that the Fund's evidence, which consisted of little mo re than one doctor's opinion that the cause of Ni chols' nerve ir ritation or degeneration was unknow n, was not convincing , and theref ore, not sufficient to pe rsuade it that Nichols' residual disability was unrelated to the burns and skin grafts that this twenty-year-old laborer had suffered. Because the evid ence supports the comm ission's holding that the Fund did not prove that Nichols' disabili ty was unrelated to- 9 - his compensable in jury, we affirm the comm ission's denial of the Fund's application for te rmination of benefits. Affirmed.