COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

JOHN E. WIGFALL 

 MEMORANDUM OPINION*

v. Record No. 0403-98-4 PER CURIAM 

 JUNE 23, 1998 

RAINBOW INDUSTRIES, INC. 

AND 

PROVIDENCE WASHINGTON INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Matthew H. Swyers; Koonz, McKenney, Johnson, 

DePaolis & Lightfoot, on brief), for 

appellant. Appellant submitting on brief. 

 (Susan L. Mitchell; John K. Coleman; Slenker, 

Brandt, Jennings & Johnston, on brief), for 

appellees. Appellees submitting on brief. 

 John E. Wigfall ("claimant") appeals a decision of the 

Workers' Compensation Commission ("commission") denying his 

application for permanent partial disability benefits and medical 

benefits for his right knee condition. Claimant contends that 

(1) by examining the sufficiency of certain medical records, the 

commission violated the doctrine of res judicata; and (2) the 

commission erred in finding that he failed to prove that his 

right knee condition was causally related to his July 17, 1995 

injury by accident. Finding no error, we affirm. 

Res Judicata

 Claimant's December 31, 1996 application, supplemented on 

April 10, 1997, sought permanent partial disability benefits for 

 

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

designated for publication. 
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impairment to claimant's right lower extremity. The issue 

presented by that application was not, and could not have been, 

previously litigated and determined as to these parties. The 

prior agreements between the parties and the commission's 

December 14, 1995 and December 12, 1996 awards pertained only to 

benefits for claimant's left medial meniscus injury. Therefore, 

the doctrine of res judicata did not bar the commission from 

considering the medical records in order to determine whether 

claimant's right knee condition was causally related to his 

compensable July 17, 1995 injury by accident. 

Causation

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

to the prevailing party below. See 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 denying claimant's application, the commission found as 

follows: 

 From this record, we find the evidence 

fails to establish that the claimant's right 

knee condition is causally related to the 

compensable accident which the claimant 

suffered on July 17, 1995. The 

contemporaneous medical reports fail to 

mention a right knee complaint. While Dr. 

[Drago] Smokvina noted the left knee injury 

as well as a "similar problem" in the right 

knee, his reports are internally 

contradictory regarding the etiology of right 
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knee complaints. In view of the 

inconsistencies in the medical record 

regarding the onset of right knee symptoms, 

we do not find Dr. Smokvina's September 22, 

1996, report persuasive. 

 Based upon Dr. Smokvina's conflicting statements and the 

lack of any contemporaneous complaints of right knee symptoms, 

the commission was entitled to give little weight to Dr. 

Smokvina's opinion. "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). Absent Dr. Smokvina's 

opinion, there is no persuasive medical evidence that claimant's 

right knee symptoms were causally related to his compensable July 

17, 1995 injury by accident. Accordingly, we cannot say that 

claimant's evidence sustained his burden of proof as a matter of 

law. 

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

 Affirmed.