COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Clements and Senior Judge Bray 

UNIVERSAL LIVING AND 

 COMMONWEALTH CONTRACTORS GROUP 

 SELF-INSURED ASSOCIATION 

 MEMORANDUM OPINION* 

v. Record No. 0981-02-1 PER CURIAM 

 SEPTEMBER 24,2002 

KURT F. STALCUP 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Todd G. Patrick; Mark S. Davis; Carr & 

Porter, LLC, on briefs), for appellants. 

 (Mary G. Commander, on brief), for appellee. 

 Universal Living and its insurer (hereinafter referred to 

as "employer") contend the Workers' Compensation Commission 

erred in denying its application alleging a change in condition 

on the ground that employer failed to prove that Kurt F. 

Stalcup's (claimant) current disability was not causally related 

to his compensable May 22, 2000 injury by accident. Upon 

reviewing the record and the parties' briefs, 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 'in an application for review of any award on the ground of 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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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

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 

employer's evidence sustained its 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). 

 In May 2000, claimant, a carpenter, sustained a compensable 

back injury while installing a Jacuzzi in a house. Prior to 

that accident, claimant had back surgery in 1998. After the 

1998 surgery, claimant returned to full-duty work as a carpenter 

and participated in bowling, baseball, and softball activities. 

 Dr. Colin Hamilton, an orthopedist, began treating claimant 

on June 16, 2000, upon a referral from Dr. Randall Fedro, who 

examined claimant immediately after the accident. Dr. Hamilton 

suspected claimant had degenerative disc disease with a probable 

acute annular disc tear. A June 7, 2000 MRI, reviewed by 

Dr. Hamilton, showed that "definite recurrent HNP cannot be 

verified." Claimant's condition continued to worsen, and 

Dr. Hamilton recommended physical therapy. 

 Claimant underwent an epidural steroid injection, but 

continued to have pain through September and October 2000. 
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After a second injection, he began having right-sided symptoms. 

After a third injection, claimant's leg pain resolved, but he 

continued to suffer from back pain. Dr. Hamilton opined that 

"it would be difficult to state that [claimant's] continuing low 

back symptoms are specifically related to his putting the 

Jacuzzi into the frame on 5-19-00 and more likely to be 

secondary to the chronic degenerative disc disease of his lumbar 

spine." 

 In Dr. Hamilton's May 4, 2001 deposition, based upon the 

lack of appreciable findings on the June 2000 MRI, Dr. Hamilton 

reiterated that claimant's continuing back problems were not 

related to the May 2000 accident, but rather were related to his 

degenerative disc disease. 

 On June 1, 2001, Dr. Grant Skidmore, a neurosurgeon, 

examined claimant upon referral from Dr. Fedro. Dr. Skidmore 

was aware of the history of claimant's May 2000 accident, his 

subsequent treatment, as well as his 1998 back surgery. 

Dr. Skidmore ordered a repeat MRI, which showed an area at the 

L3-4 level that "appears to represent a small disc protrusion or 

disc fragment" that was not "seen with certainty on the previous 

study." 

 On September 13, 2001, Dr. Skidmore opined that the May 

2000 compensable accident exacerbated claimant's back condition, 

causing claimant's current symptoms. Dr. Skidmore noted that 

claimant was doing well and not receiving any treatment before 
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the May 2000 accident, but had suffered from back symptoms since 

then. 

 Based upon this record, the commission found that employer 

failed to prove that claimant's continuing problems were not the 

result of the May 2000 compensable accident. As fact finder, 

the commission weighed the medical evidence, accepted 

Dr. Skidmore's opinion, and rejected the contrary opinion of 

Dr. Hamilton. "Questions raised by conflicting medical opinions 

must be decided by the commission." Penley v. Island Creek Coal 

Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). 

Dr. Skidmore's opinion was based on a more definitive MRI study 

not available to Dr. Hamilton. Moreover, as the commission 

noted, claimant had "continuous problems since the May 2000 

accident compared with his stable condition before the 

accident." Accordingly, based upon this record, we cannot find 

as a matter of law that employer's evidence sustained its burden 

of proof. 

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

Affirmed.