COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Bray and Senior Judge Duff 

BUREN GOINGS 

v. Record No. 2909-95-4 MEMORANDUM OPINION*

 PER CURIAM 

NATIONAL SOCIETY OF PUBLIC ACCOUNTANTS APRIL 16, 1996 

AND 

UTICA NATIONAL INSURANCE GROUP 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (James F. Green; Ashcraft & Gerel, on 

brief), for appellant. 

 (Charles F. Midkiff; Scott C. Ford; Midkiff 

& Hiner, on brief), for appellees. 

 Buren Goings ("claimant") contends that the Workers' 

Compensation Commission ("commission") erred in finding that he 

failed to prove (1) that his left shoulder condition constituted 

a compensable consequence of his January 4, 1993 right shoulder 

injury; or (2) that he sustained an injury by accident to his 

left shoulder arising out of and in the course of his employment 

on January 4, 1993. 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. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

 

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

designated for publication. 
 2 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

"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). 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. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 

S.E.2d 833, 835 (1970). 

Background 

 On January 4, 1993, claimant sustained a right shoulder 

rotator cuff tear while in the course of and arising out of his 

employment. Employer accepted claimant's right shoulder injury 

as compensable and the commission entered an award on July 13, 

1993. On December 22, 1994, claimant filed an application 

alleging that he also injured his left shoulder as a result of 

the January 4, 1993 accident, or in the alternative, that his 

left shoulder condition was a compensable consequence of his 

January 4, 1993 right shoulder injury. 

 Claimant testified that he felt sharp pain in his right 

bicep at the time of the accident. However, he admitted that he 

did not feel any pain in his left arm on January 4, 1993. On 

February 2, 1993, Dr. Rida N. Azer, an orthopedic surgeon, began 

treating claimant. On March 4, 1993, Dr. Azer performed surgery 

on claimant's right shoulder. After the surgery, claimant wore a 

sling for three weeks. Claimant attended physical therapy two 
 3 

times per week from March 1993 through August 1993. 

 Claimant stated that, from January 4, 1993 until the end of 

August 1993, he had to use his left hand almost exclusively 

because of the weakness in his right arm. Claimant contended 

that he began to experience sharp pains and muscle spasms in his 

left shoulder approximately two to three months after his 

surgery. The severity of the pain caused claimant to wake up at 

night screaming. 

 The March 3, 1993 Memorandum of Agreement signed by claimant 

contains no indication of any left shoulder injury nor did 

claimant mention any injury to his left shoulder during his 

February 11, 1993 recorded statement. In addition, claimant's 

physical therapy records from March 26, 1993 through August 18, 

1993 do not contain any mention of left shoulder complaints. 

Claimant did not mention left shoulder pain or problems to Dr. 

Moosa Kazim, who examined claimant at employer's request on 

August 3, 1993 and March 29, 1994. 

 On August 31, 1993, Dr. Azer noted that, after a physical 

therapy session where claimant used weights from fifty to ninety 

pounds, his left shoulder showed a range of motion of zero to 160 

degrees with pain in the abduction arc. Dr. Azer's records do 

not contain any subsequent mention of left shoulder pain until 

June 21, 1994. Left shoulder x-rays taken on July 12, 1994 

revealed multiple cysts and degenerative changes in the AC joint. 

 An August 4, 1994 MRI revealed a complete tear of the 
 4 

supraspinatus tendon along with an irregularity of the superior 

labrum suggestive of a tear. 

 In his March 15, 1995 progress note, Dr. Azer opined that 

claimant "has significant residuals from his injury of 1-4-93. 

He has impingement syndrome of the left shoulder and severe 

adhesive capsulitis. He is awaiting surgical intervention 

. . . ." On March 31, 1995, based solely upon claimant's 

statements that he had symptoms in both shoulders at the time of 

the January 4, 1993 accident, Dr. Azer opined that claimant 

injured his left shoulder in the January 4, 1993 compensable 

accident. Dr. Azer also stated that the treatment of claimant's 

right shoulder, which caused him to overuse his left shoulder, 

resulted in an increase in the rotator cuff tear and the left 

shoulder impingement syndrome. 

 On February 8, 1995, claimant told Dr. Kazim that his left 

shoulder pain began in July or August 1994 as he reached into the 

backseat of his convertible. Claimant denied left shoulder 

problems prior to July 1994. Dr. Kazim diagnosed impingement 

syndrome of the left shoulder, which he opined was not related in 

any manner to the January 4, 1993 right shoulder injury. 

 Claimant admitted that he experienced severe left shoulder 

pain during the convertible incident on July 4, 1994. However, 

he maintained that his left shoulder pain began before that 

incident, and that he told Dr. Kazim that the incident was one of 

the many times he had felt sharp pain. 
 5 

 Compensable Consequence 

 The commission found that claimant failed to prove a causal 

connection between his initial compensable injury and his 

subsequent left shoulder condition. In so ruling, the commission 

took into account claimant's failure to report left shoulder pain 

until June 1994, long after his initial injury. The commission 

inferred from claimant's testimony and the medical records that 

he most likely sustained the left shoulder injury in July 1994 

when he reached into the backseat of his convertible. 

 In its role as fact finder, the commission was entitled to 

reject claimant's testimony concerning when his left shoulder 

pain began, in light of the lack of corroboration from the 

medical records and the physical therapy notes. "It lies within 

the commission's authority to determine the facts and the weight 

of the evidence . . . ." Rose v. Red's Hitch & Trailer Servs., 

Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990). 

 In addition, the commission was entitled to accept Dr. 

Kazim's opinion over that of Dr. Azer, where Dr. Azer's opinion 

was based upon an inaccurate history. Unlike Dr. Kazim, Dr. Azer 

was not aware of the July 1994 incident. Moreover, Dr. Azer was 

under the inaccurate impression that claimant suffered from left 

shoulder symptoms at the time of the January 4, 1993 accident, 

contrary to claimant's own testimony. Where a medical opinion is 

based upon an incomplete or inaccurate medical history, the 

commission is entitled to conclude that the opinion is of little 
 6 

probative value. See Clinchfield Coal Co. v. Bowman, 229 Va. 

249, 251-52, 329 S.E.2d 15, 16 (1985). The commission could 

reasonably infer from the evidence that claimant sustained the 

left shoulder injury during the July 1994 convertible incident. 

"Where reasonable inferences may be drawn from the evidence in 

support of the commission's factual findings, they will not be 

disturbed by this Court on appeal." Hawks v. Henrico County Sch. 

Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). 

 Based upon this record, we cannot find as a matter of law 

that claimant's evidence proved that his left shoulder condition 

constituted a compensable consequence of his January 4, 1993 

right shoulder injury. 

Injury by Accident 

 "In order to carry his burden of proving an 'injury by 

accident,' a claimant must prove the cause of his injury was an 

identifiable incident or sudden precipitating event and that it 

resulted in an obvious and sudden mechanical or structural change 

in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 

858, 865 (1989). 

 The commission found that claimant's evidence failed to 

prove that he sustained an injury by accident to his left 

shoulder on January 4, 1993. In so ruling, the commission stated 

as follows: 

 The medical records do not corroborate the 

claimant's account of such an injury to his 

left shoulder in 1993. As the deputy 

commissioner points out, the employee did not 

report left shoulder problems until 17 months 
 7 

subsequent to the compensable injury by 

accident to his right shoulder. Further, the 

testimony reflects that the employee quite 

likely sustained an injury by accident on 

July 4, 1994, while loosening the latch on 

his convertible. 

 Claimant presented no medical evidence to support a finding 

of a sudden mechanical or structural change in his left shoulder 

occurring on January 4, 1993 or during the months immediately 

thereafter. Moreover, he admitted that, at best, his left 

shoulder pain did not begin until May or June 1993, at least four 

months after the January 4, 1993 accident. The commission was 

entitled to reject Dr. Azer's March 1995 opinion because Dr. Azer 

was unaware of the convertible incident and because his opinion 

was based upon his inaccurate belief that claimant experienced 

left shoulder symptoms at the time of the January 4, 1993 

accident. 

 Based upon this record, we cannot find as a matter of law 

that claimant met his burden of proving he sustained an injury by 

accident to his left shoulder on January 4, 1993. 

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

 Affirmed.