COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

PATRICIA DIANE HUTTON 

 MEMORANDUM OPINION* v. Record No. 1386-97-3 PER CURIAM 

 NOVEMBER 18, 1997 

STERLING CASKET HARDWARE COMPANY, INC. 

 AND CINCINNATI CASUALTY COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Lawrence L. Moise III; Vinyard & Moise, on 

briefs), for appellant. 

 (Christen W. Burkholder, on brief), for 

appellees. 

 Patricia Diane Hutton (claimant) contends that the Workers' 

Compensation Commission (commission) erred in finding that she 

failed to prove that her herniated lumbar disc, corresponding 

surgery, and disability from March 5, 1996 through July 21, 1996 

were causally related to her February 23, 1993 compensable injury 

by accident. 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. See R.G. Moore Bldg. Corp. v. 

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

"General principles of workman's compensation law provide that 

 

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

designated for publication. 
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'[i]n an application for review of any award on the ground of 

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

change to prove his allegations by a preponderance of the 

evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 

459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight 

Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 

572 (1986)). Unless we can say as a matter of law that 

claimant's evidence sustained her 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 and finding that her 

evidence failed to prove that her herniated lumbar disc and 

corresponding 1996 surgery and subsequent disability were 

causally related to her compensable February 23, 1993 injury by 

accident, the commission found as follows: 

 Two physicians have commented on the 

claimant's current condition and whether it 

is caused by the earlier compensable injury. 

 Dr. Neal A. Jewell, orthopedic surgeon, has 

expressed his unequivocal opinion that her 

current back condition is entirely new, 

particularly in light of the normal 

diagnostic studies noted between September 

23, 1993, and September 22, 1995. Dr. Melvin 

L. Heiman, the treating orthopedic surgeon, 

initially agreed, but subsequently expressed 

some misgivings as to the accuracy of the 

prior diagnostic studies and their 

interpretation. However, Dr. Heiman's 

reservations do not contradict his earlier 

opinion in which he agreed with Dr. Jewell. 

 Finally, we do find his indication of a 

possible causal connection sufficient to 

carry the burden of proof. 
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 Dr. Jewell's opinions and the diagnostic test results 

support the commission's findings. As fact finder, the 

commission was entitled to accept Dr. Jewell's opinion and to 

reject Dr. Heiman's contrary 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). 

Moreover, "[q]uestions 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). "[W]hen it 

appears . . . that the [treating physician's] diagnosis is shaded 

by doubt, and there is medical expert opinion contrary to the 

opinion of the attending physician, then the trier of the fact is 

left free to adopt that view which is most consistent with reason 

and justice." Bristol Builders' Supply Co. v. McReynolds, 157 

Va. 468, 471, 162 S.E. 8, 9 (1932); see Reeves, 1 Va. App. at 

439, 339 S.E.2d at 572. 

 Claimant's argument that the commission erred by not 

applying the doctrine of compensable consequences is without 

merit. The doctrine of compensable consequences provides: 

 where a causal connection between the initial 

compensable injury and the subsequent injury 

is established, the doctrine of compensable 

consequences extends the coverage of the 

Workers' Compensation Act to the subsequent 

injury because the subsequent injury "is 

treated as if it occurred in the course of 

and arising out of the employee's 

employment." 
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American Filtrona Co. v. Hanford, 16 Va. App. 159, 163, 428 

S.E.2d 511, 513 (1993) (quoting Bartholow Drywall Co. v. Hill, 12 

Va. App. 790, 793-94, 407 S.E.2d 1, 3 (1991) (citations 

omitted)). Here, claimant's evidence failed to prove a causal 

connection between the initial February 23, 1993 compensable 

injury and her herniated lumbar disc diagnosed in 1995 and 

operated on in 1996. 

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

that claimant's evidence sustained her burden of proof. 

Accordingly, we affirm the commission's decision. 

 Affirmed.