COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Frank and Clements 

MARCUS ANTHONY SMALLS 

 MEMORANDUM OPINION*

v. Record No. 0478-03-4 PER CURIAM 

 JUNE 17, 2003 

BELL CORPORATION OF ROCHESTER/ 

 BELL GROUP, INC. AND 

 TRAVELERS INDEMNITY COMPANY 

 OF ILLINOIS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (William S. Sands, Jr.; Duncan & Hopkins, 

P.C., on brief), for appellant. 

 (Francis G. Marrin; Law Offices of Roger S. 

Mackey, on brief), for appellees. 

 Marcus Anthony Smalls (claimant) contends the Workers' 

Compensation Commission erred in finding that he failed to prove 

that (1) he could not return to his pre-injury work without 

restrictions after April 30, 2001; and (2) his medical treatment 

and disability after April 29, 2001 were causally related to his 

compensable October 16, 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. 

 

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

designated for publication. 
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 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). 

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. See Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 In ruling that the evidence proved that claimant could 

return to his pre-injury work without restrictions by April 30, 

2001 and that he failed to prove that his medical treatment and 

disability after April 29, 2001 were causally related to his 

compensable October 16, 2000 injury by accident, the commission 

found as follows: 

[B]oth Dr. [Neil] Kahanovitz and 

[Dr. Ian A.] Wattenmaker repeatedly opined 

that [claimant] displayed subjective 

complaints that could not be supported by 

objective findings. On February 21, 2001, 

Dr. Kahanovitz reported that the claimant's 

complaints were "completely inconsistent 

with his primarily subjective complaints." 

He also relied on the FCE [Functional 

Capacities Evaluation] results, which 

revealed symptom magnification. Similarly, 

Dr. Wattenmaker described the lack of 

correlation between a back injury and the 

claimant's abnormal physical findings. 

Dr. Wattenmaker observed a functional 

overlay component and found no objective 

injury that prevented the claimant from 

working. 

 Furthermore, Drs. Kahanovitz and 

Wattenmaker viewed a videotape of the 

claimant performing various lifting and 

bending activities without difficulty. 
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Based upon this videotape and the lack of 

objective findings, both orthopedic surgeons 

determined that after April 30, 2001, he 

could return to work without restrictions. 

Additionally, on September 5, 2001, 

Dr. [Wayne C.] Lindsey agreed with 

Drs. Kahanovitz and Wattenmaker that the 

claimant could perform regular duty. 

 This evidence also supports the finding 

that the claimant failed to prove that 

medical treatment and disability after April 

29, 2001, were causally related to the 

industrial accident. He did not receive 

medical treatment for several months. Then, 

an MRI scan taken on September 13, 2001, 

revealed a small disc extrusion at the L5-S1 

level contacting the left S1 nerve root 

sleeve. Dr. [Eugene A.] Eline[, Jr.] 

attributed this condition to the industrial 

accident. However, Dr. Kahanovitz disputed 

a causal relationship between the claimant's 

current condition and the work-related 

injury. He persuasively explained that: 

There is a significant change in 

the appearance of the MRI and if 

the injury had caused [the 

claimant's] current symptoms there 

would be no change from the 

previous MRI from December 2000. 

Therefore a separate and distinct 

independent event may have caused 

the [claimant's] current 

symptomatology but since there is 

a distinct difference in the MRI 

of 2000 and 2001 I cannot relate 

the current symptoms to the prior 

symptoms and/or injury of 

10-16-2000. 

 The medical records and opinions of Drs. Kahanovitz, 

Wattenmaker, and Lindsey, coupled with the FCE and the 

videotape, amply support the commission's findings that claimant 

could return to work without restrictions by April 30, 2001 and 
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that his medical treatment and disability after April 29, 2001 

were not causally related to his compensable injury by accident. 

"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). As fact finder, the commission weighed the 

medical evidence, accepted the opinions of Drs. Kahanovitz and 

Wattenmaker, and rejected Dr. Eline's opinion. "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). 

 Because the medical evidence was subject to the 

commission's factual determination, we cannot find as a matter 

of law that claimant's evidence sustained his burden of proof. 

Accordingly, we affirm the commission's decision. 

Affirmed.