COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Annunziata and Bumgardner 

Argued at Salem, Virginia 

UNINSURED EMPLOYER'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 WORKERS' COMPENSATION COMMISSION 

 Patricia H. Quillen, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

John J. Beall, Jr., Senior Assistant 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 Employer's Fund appeals the Workers' 

Compensation Commission's decision denying the Fund's application 

to terminate benefits based upon a change in condition. 

The Fund alleged in its application that the claimant was no 

longer disabled from the industrial accident and that his residual 

disability was unrelated to the accident. The Fund argues that 

the commission erred in finding that it failed to prove that as of 

August 27, 1998, Tony Allen Nichols was no longer disabled as a 
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result of the compensable injury. We disagree and affirm the 

commission's decision. 

BACKGROUND

 Nichols was employed as a mechanic by Joseph Wright, trading 

as Wright's Lawn Service and Automotive Repair (Wright). On April 

20, 1996, while working for Wright, Nichols was repairing a 

vehicle's carburetor when the carburetor backfired and caused 

flash burns over twenty percent of Nichols' body, particularly 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 extremity and forearm and to the right hand and 

three fingers of the right hand. Nichols filed a claim for and 

was awarded temporary total disability benefits. Upon finding 

that Wright was uninsured, the commission ordered the Fund to 

satisfy the award. 

 In June 1997, Nichols 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 strength and was unable to sustain a strong 

right hand grip for more than two to three seconds at one time. 

He was found to be limited in carrying things with his right hand, 

working overhead, crawling, and performing activities requiring 

fine motor coordination of his right hand. If Nichols returned to 

work, the evaluator opined that he would require tools with 
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built-up handles and that he would be unable to perform activities 

requiring sustained or strong repetitive right hand grip strength. 

 On July 21, 1997, the Fund filed an Application for Hearing, 

alleging that Nichols was released to return to his pre-injury 

work by Dr. J. Samuel Mitchener, III, a plastic and reconstructive 

surgeon who had treated Nichols after the accident. Dr. Mitchener 

had also previously treated Nichols in 1995 for a blunt trauma 

injury to the dorsum of his right hand, sustained while working 

for another employer. In his report, Dr. Mitchener concluded that 

Nichols was able to return "to full work," but he noted that 

Nichols "may have difficulties finding employment given the 

deficits documented in the FCE." Dr. Mitchener opined that 

Nichols could perform "many types" of automotive and lawnmower 

repairs, despite the fact that he had not been provided a detailed 

job description of Nichols' pre-injury work duties. The 

commission denied the Fund's application. 

 The Fund filed a second Change in Condition Application, 

alleging that Nichols was no longer disabled as a result of the 

industrial accident and, except for a residual disability from a 

prior unrelated blunt trauma injury, that Nichols would have been 

able to return to his pre-injury work as of August 27, 1998. The 

Fund based its application upon Dr. Mitchener's report dated 

August 27, 1998. 
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 The only evidence in the record delineating Nichols' 

pre-injury job duties is his affidavit stating that, as a shop 

mechanic and supervisor, he was required routinely to perform many 

tasks involving fine manipulation of objects with both hands, many 

tasks requiring a strong right hand grip for sustained periods, 

lifting heavy objects from floor to waist and carrying objects 

with both hands, and crawling and working overhead. Prior to the 

industrial accident, Nichols never required the use of tools with 

"built-up handles" to perform his work. 

 In June 1998, the Fund set forth in a letter to Dr. Mitchener 

the pre-injury job duties as described by Nichols in his 

affidavit. Dr. Mitchener had no other information detailing 

Nichols' pre-injury job duties. The Fund requested that Dr. 

Mitchener evaluate Nichols and respond to several queries. 

 Nichols was examined by Dr. Mitchener, and in an August 27, 

1998 letter, Dr. Mitchener opined that Nichols was not disabled 

due to the burn injury; he stated that "it appears that any 

disability . . . may be related to the blunt trauma injury of 

September 22, 1995." Dr. Mitchener "strongly suspected" that if 

Nichols had only the burn injury, he would be able to return to 

his pre-injury status as an auto mechanic and supervisor. Dr. 

Mitchener further noted that Nichols had grip strength problems, 

but Dr. Mitchener attributed the problems "almost entirely" to the 

blunt trauma injury rather than the burn injury. Dr. Mitchener 
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opined that Nichols would not likely obtain pre-injury status and 

that he would have permanent restrictions based on the lack of 

complete extension of the right small finger. Dr. Mitchener noted 

that Nichols also demonstrated signs of peripheral nerve 

irritation and/or compression of unknown etiology. Dr. Mitchener 

opined that the pain Nichols experiences in the right upper 

extremity was either related to ulnar nerve compression at the 

right elbow or median nerve compression at the wrist and 

recommended that Nichols obtain a complete neurological 

evaluation. 

 The commission found that the Fund failed to prove that 

Nichols was able to perform his pre-injury work. The commission 

noted that Nichols was able to perform his pre-injury work prior 

to the industrial accident despite the pre-existing decreased 

range of motion in the right fifth digit due to the 1995 blunt 

trauma injury. The commission found that Nichols' inability to 

perform his pre-injury work is evident from Dr. Mitchener's August 

27, 1998 report in which Dr. Mitchener noted that Nichols still 

experiences grip strength problems, even though Dr. Mitchener 

attributed the problems "almost entirely to the earlier blunt 

trauma injury." The commission found that the Fund had failed to 

prove that the peripheral neuropathy, which prevented Nichols from 

performing a number of significant pre-injury work duties, was not 

related to the industrial accident. The commission noted that the 
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neuropathy was not present before the industrial accident and that 

it was to an area of the body where Nichols sustained extensive 

burns and skin grafts. 

ANALYSIS

 "In an application for review of an 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." 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 found that the Fund failed to prove by a 

preponderance of the evidence that Nichols' residual 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 
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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 referral to a neurologist to determine the cause of 

Nichols' peripheral neuropathy in his right upper extremity, the 

commission would not presume that the condition, which had not 

existed prior to the burn injury, was not related to the burn 

injury. The commission noted that Nichols' blunt trauma injury 

occurred before Nichols began working for Wright and that nothing 

in the record indicates that Nichols' pre-injury work performance 

was affected by that injury. No evidence exists to indicate that 

he experienced grip strength deficiencies, that he was unable to 

perform all the functions of the job, or that he required the use 

of special tools. 

 The commission articulated legitimate reasons for giving 

little probative weight to Dr. Mitchener's opinions. "Medical 

evidence is not necessarily conclusive, but is subject to the 

commission's consideration and weighing." 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 application alleged that Nichols' 

residual incapacity was unrelated to his industrial accident, to 

prove that the disability resulting from the irritation or 
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degeneration of the nerves in Nichols' right hand was not caused 

by the industrial accident. 

 Here, the commission found that the Fund failed to carry its 

burden of proof in that Dr. Mitchener's evidence did not persuade 

them that Nichols' residual incapacity, specifically the lack of 

grip strength in the right hand, was unrelated to the industrial 

accident. Admittedly, Dr. Mitchener opined that Nichols' lack of 

grip strength was unrelated to the industrial accident and that it 

probably was caused by "peripheral nerve irritation and/or 

compression, etiology unknown." The commission, however, was not 

required to accept Dr. Mitchener's conclusory opinion as to 

causation, nor was the commission required to conclude from Dr. 

Mitchener's opinion that because the etiology of the nerve 

irritation or degeneration was unknown, that the Fund had met its 

burden of proving that the disability was not caused by the 

industrial accident. Quite simply, the commission found that the 

Fund's evidence, which consisted of little more than one doctor's 

opinion that the cause of Nichols' nerve irritation or 

degeneration was unknown, was not convincing, and therefore, not 

sufficient to persuade it that Nichols' residual disability was 

unrelated to the burns and skin grafts that this twenty-year-old 

laborer had suffered. 

 Because the evidence supports the commission's holding that 

the Fund did not prove that Nichols' disability was unrelated to 
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his compensable injury, we affirm the commission's denial of the 

Fund's application for termination of benefits. 

Affirmed.