COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Elder 

Argued at Richmond, Virginia 

MARY WASHINGTON HOSPITAL AND 

 THE VIRGINIA INSURANCE RECIPROCAL 

 MEMORANDUM OPINION* BY 

v. Record No. 1582-98-2 JUDGE LARRY G. ELDER 

 MARCH 30, 1999 

PATRICIA B. HOLLOWAY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Andrea L. Bailey (Crews & Hancock, P.L.C., on 

briefs), for appellants. 

 Leila H. Kilgore (Benjamin M. Smith, Jr.; 

Kilgore & Smith, on brief), for appellee. 

 

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Mary Washington Hospital and the Virginia Insurance 

Reciprocal (hereinafter collectively employer) appeal from a 

decision of the Virginia Workers' Compensation Commission 

(commission) denying employer's application, based on an alleged 

change in condition, to terminate compensation benefits payable 

to Patricia B. Holloway (claimant). Employer contends no 

credible evidence supported the commission's decision that 

employer failed to meet its burden of proving claimant's ongoing 

disability was not causally related to her compensable injury of 

September 7, 1994. For the reasons that follow, we disagree and 

affirm the ruling of the commission. 
I. 

 FACTS 

 On September 7, 1994, while working as a nurse for employer, 

claimant sustained a compensable injury to her back while moving 

a patient from a stretcher to a bed. Claimant received treatment 

for her injury from Andre Eglevsky, Jr., an orthopedic surgeon 

from employer's panel of physicians. Dr. Eglevsky diagnosed her 

as having a "lumbo-sacral spine sprain," which he attributed to 

her lifting a patient on September 7, 1994. Employer accepted 

the claim as compensable, and the commission entered an award for 

various periods of disability. Claimant was temporarily and 

totally disabled from the date of the accident through 

December 12, 1994, and temporarily and partially disabled at 

varying rates thereafter. 

 Dr. Eglevsky treated claimant for her injury continuously 

from 1994 to 1997, during which time claimant reported ongoing 

chronic pain. Multiple MRIs revealed that claimant had two 

herniated disks, but neither Eglevsky nor a neurosurgeon to whom 

Eglevsky referred claimant believed that the disks were the 

source of her problems. Whether Eglevsky believed these 

herniations could have resulted from claimant's 1994 injury is 

unclear. 

 During the course of his treatment, Dr. Eglevsky noted that 

claimant had received a diagnosis of fibromyalgia prior to her 

1994 injury, and he opined that her fibromyalgia played a greater 

role in her inability to return to full-duty employment than did 

her mechanical back problem. However, Eglevsky noted the 

- 2 -
contrary opinion of a rheumatologist, who believed that 

claimant's mechanical back problem was responsible for her pain 

and that "the back problem is fanning the fibromyalgia." 

 In September 1996, Dr. Eglevsky opined that claimant was in 

a "[chronic] pain pattern, the pain emanating from fibromyalgia, 

chronic muscular pain, etc.," that "there [was] [no] simple 

solution to her problem," and that he did not "foresee any 

dramatic increase in her work capacity." 

 After examining claimant on October 9, 1997, Dr. Eglevsky 

reported that "it's not really clear what the source of 

[claimant's chronic pain problem] is; that is, it could be 

related to her chronic myofascial pain; it may be related to scar 

tissue in her back or just a chronic muscular problem." 

 By letter of November 6, 1997, however, less than a month 

later, and without further examining claimant, Dr. Eglevsky 

opined as follows: 

 After treating [claimant] for several years 

and after evaluating her various tests, her 

various second opinions, and watching the 

course of her treatment, I have concluded 

that her present pain is not related to her 

accident of September 7, 1994. 

 She is suffering from a chronic pain problem 

that stems from her fibromyalgia. I feel 

that this is a pre-existing condition and is 

not related to her industrial accident of 

September 7, 1994. 

In an office note of November 11, 1997, Eglevsky noted that he 

based his opinion on the duration of claimant's problem, the lack 

of objective findings, the fact that no physician who had 

examined her felt she had a surgical lesion, and the fact that 

all attempts at treatment had failed. 

- 3 -
 By letter of November 25, 1997, employer moved to terminate 

claimant's benefits based on Dr. Eglevsky's November 6, 1997 

report, that claimant's ongoing disability was not causally 

related to her 1994 injury. 

 In opposing employer's change-in-condition application, 

claimant presented the medical records of Dale Pcsolyar, a 

neurologist whom claimant apparently saw on referral from her 

personal internist. On November 13, 1997, Dr. Pcsolyar noted 

that claimant's pain could be "strictly myofascial pain, may be 

piriformis syndrome." He also said he could not "rule out 

sacroiliac joint pain referral, facet joint pain referral [or] 

. . . internal disk disruption" but that he did not think it was 

neuropathic in origin. Finally, he said, "[g]iven her widespread 

musculoskeletal pain, [he] would like to look for . . . causes 

other than fibromyalgia." Dr. Pcsolyar reviewed claimant's most 

recent MRI, and on December 11, 1997, he recommended a 

"Somatosensory Evoked Potential" or "SSEP to rule out 

radiculopathy in which case this would of course implicate the 

degenerated disk disease affecting nerve roots causing her pain 

syndrome." He noted that "if the SSEP is abnormal, then only 

nerve root impingement either through the piriformis or from the 

disk would account for such an abnormality." The results from 

the "left sural SSEP" were abnormal, which Pcsolyar said "could 

be indicative of an abnormality between the point of stimulation 

to the S1 lumbar nerve root and could be seen in an S1 

radiculopathy on the left." 

- 4 -
II. 

 ANALYSIS 

 "In an application for review of an award on the ground of a 

change in condition, the burden is on the party alleging such 

change to prove his allegations by a preponderance of the 

evidence." Rossello v. K-Mart Corp., 15 Va. App. 333, 335, 423 

S.E.2d 214, 216 (1992) (citation omitted). Factual findings made 

by the commission in reviewing the employer's change-in-condition 

application are "conclusive and binding on the appellate court if 

based on credible evidence." Jules Hairstylists, Inc. v. 

Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592, 595 (1985). In 

determining whether credible evidence exists, we view the 

evidence in the light most favorable to the prevailing party. 

See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 

S.E.2d 788, 788 (1990). This Court does not "'retry the facts, 

reweigh the preponderance of the evidence, or make its own 

determination of the credibility of the witnesses.'" Falls 

Church Constr. Corp. v. Valle, 21 Va. App. 351, 359, 464 S.E.2d 

517, 522 (1995) (citation omitted). Although the opinion of the 

treating physician is entitled to great weight, see Pilot Freight 

Carriers v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 

(1986), "[m]edical 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, 214 (1991). 

 Here, the commission found that employer failed to prove 

claimant's continuing disability was not related to her 

- 5 -
industrial injury. Implicit in the commission's decision is a 

finding that Dr. Eglevsky's November 6, 1997 opinion was not 

credible. The commission noted that, as late as October 9, 1997, 

Dr. Eglevsky opined that the source of claimant's ongoing pain 

was unclear and that "it could be related to the chronic 

myofascial pain, scar tissue in her back or [chronic] muscular 

problems." On November 6, 1997, however, less than one month 

later, and in the absence of an additional medical examination, 

Eglevsky was certain that claimant's ongoing chronic pain 

problems resulted from a single source, her pre-existing 

fibromyalgia or "chronic myofascial pain," and were unrelated to 

her compensable injury of September 7, 1994. In implicitly 

rejecting this opinion, the commission noted that "[t]he record 

contain[ed] no medical report between [Dr. Eglevsky's October 9, 

1997 office note] and the doctor's November 6, 1997, letter" 

which would support his change in opinion. Under the 

commission's authority to assess the credibility of the witnesses 

and determine what weight to give medical evidence, it was free 

to reject Dr. Eglevsky's opinion as to causation. Once it 

rejected that opinion, no evidence in the record proved that 

claimant's ongoing disability was not causally related to her 

compensable injury. 

 Employer contends that the fact that Dr. Eglevsky mentioned 

more than one possible source of claimant's ongoing chronic pain 

in his office note of October 9, 1997, does not mandate the 

conclusion that claimant's ongoing disability is causally related 

to her compensable injury. Although this assertion is true, it 

- 6 -
does not take into account the fact that employer bore the burden 

of proving, on its change-in-condition application, that 

claimant's ongoing pain and related disability are not causally 

related to her compensable injury. Therefore, considering only 

Dr. Eglevsky's medical records and opinions, the commission was 

free to reject his most recent opinion on the issue of causation 

as not credible. 

 Here, the commission also relied upon the reports of Dr. 

Pcsolyar, a neurologist, and the absence of any reports from Dr. 

Miller, a physician who had treated claimant for her fibromyalgia 

in the past. Dr. Pcsolyar's records from November 1997 indicated 

several possible causes for claimant's ongoing pain, including 

"strictly myofascial pain," "piriformis syndrome," "sacroiliac 

joint pain referral, facet joint pain referral [or] . . . 

internal disk disruption." Therefore, unlike Dr. Eglevsky, Dr. 

Pcsolyar was unable to conclude that claimant's ongoing pain was 

caused solely by her pre-existing fibromyalgia. Furthermore, Dr. 

Pcsolyar performed additional testing, a "[s]omatosensory 

[e]voked [p]otential test" or "SSEP." His records indicated that 

the results from the "left sural SSEP" were abnormal and that 

"only nerve root impingement either through the piriformis or 

from the disk would account for such an abnormality." Therefore, 

Dr. Pcsolyar's testing resulted in objective findings which 

implicated sources for claimant's ongoing pain other than, or in 

addition to, claimant's fibromyalgia, whereas Dr. Eglevsky had 

noted a lack of objective findings and concluded that claimant's 

ongoing chronic pain stemmed solely from her fibromyalgia. 

- 7 -
 "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). Although Dr. 

Pcsolyar rendered no opinion as to the causal relationship 

between the nerve root impingement "either through the piriformis 

or from the disk" and claimant's compensable injury, Dr. 

Eglevsky's records and November 6, 1997 letter provide no 

indication that he considered these possible sources of 

claimant's pain in rendering his opinion on causation. 

Therefore, Dr. Pcsolyar's opinions provided a further basis for 

the commission's rejection of Dr. Eglevsky's November 6, 1997 

opinion on causation. 

 For these reasons, we hold that credible evidence supported 

the commission's denial of employer's change-in-condition 

application seeking termination of claimant's benefits. 

Therefore, we affirm the commission's decision. 

Affirmed.

- 8 -