COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

DENNIS RAY McGUIRE 

v. Record No. 0352-95-2 MEMORANDUM OPINION*

 PER CURIAM 

DOBBS INTERNATIONAL SERVICES, INC. SEPTEMBER 26, 1995 

AND 

LIBERTY MUTUAL INSURANCE COMPANY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Dennis Ray McGuire, pro se, on brief). 

 (Susan A. Evans; Siciliano, Ellis, Dyer & 

Boccarosse, on brief), for appellees. 

 Dennis R. McGuire ("claimant") contends that the Workers' 

Compensation Commission erred in finding that he failed to prove 

that (1) he sustained a back injury causally related to his March 

7, 1994 compensable injury by accident; and (2) he made a 

reasonable effort to market his residual capacity between March 

20, 1994 and May 23, 1994. 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. 

 

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

designated for publication. 

 I. Back Injury

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

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

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

Unless we can say as a matter of law that claimant's evidence 

sustained his burden of proving that he sustained a back injury 

causally related to his March 7, 1994 injury by accident, 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). 

 In holding that claimant sustained a compensable head injury 

on March 7, 1994, but that he failed to prove he sustained a back 

injury causally related to the March 7, 1994 injury by accident, 

the commission found as follows: 

 Dr. [Richard] Leschek's opinion is not 

persuasive because his reports show he was 

misinformed regarding the accident and the 

timing of the claimant's complaints. He 

noted the claimant had been knocked down, 

which is contrary to the testimony of both 

the claimant and Craig Cooper, who witnessed 

the accident. Dr. Leschek's reports also 

record a history of back pain immediately 

after the accident. In contrast, the 

claimant testified he did not notice any 

injury immediately after the accident other 

than a knot on the head, and that by March 9 

he noticed numbness but no back pain. 

Moreover, the Employer's First Report of 

Injury did not reference any back injury nor 

did the claimant's March 17, 1994 Claim for 

Benefits. 

 The testimony of claimant and Cooper, as well as the 

accident report and the Claim for Benefits form, support the 

commission's finding that claimant did not sustain a back injury 

on March 7, 1994. Both claimant and Cooper unequivocally 

testified that claimant was hit on the head, but not knocked 

down. Claimant did not notice back pain immediately after the 
 3 

accident nor did he tell Cooper that he had hurt his back. On 

the accident report and the Claim for Benefits, claimant reported 

only a head injury. 

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

determine what weight, if any, to give to Dr. Leschek's opinion. 

 "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). Where a medical opinion is based upon an incomplete 

or inaccurate medical history, the commission is entitled to 

conclude that the opinion was of little probative value. See

Clinchfield Coal Co. v. Bowman, 229 Va. 249, 251-52, 329 S.E.2d 

15, 16 (1985). Since Dr. Leschek's opinion that claimant's back 

injury was caused by the March 7, 1994 accident was based upon an 

inaccurate history, the commission did not err in rejecting Dr. 

Leschek's opinion. Absent Dr. Leschek's opinion, there was no 

evidence of a causal connection between the March 7, 1994 

industrial accident and claimant's back condition. 

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

that claimant's evidence sustained his burden of proving that he 

sustained a back injury causally related to the March 7, 1994 

injury by accident. 

 II. 

 The medical records reflect that claimant's work 

restrictions and continuing partial disability were related 
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solely to his back condition. Since we find that the commission 

did not err in ruling that claimant failed to prove a compensable 

back injury, we need not address the marketing issue as it is 

moot. 

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

 Affirmed.