COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

FEDERAL EXPRESS CORPORATION 

 MEMORANDUM OPINION*

v. Record No. 1947-99-2 PER CURIAM 

 DECEMBER 21, 1999 

CONNIE T. KLYVER 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Roger L. Williams; John T. Cornett, Jr.; 

Williams, Lynch & Whitt, on brief), for 

appellant. 

 (B. Mayes Marks, Jr.; Marks and Williams, 

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

 Federal Express Corporation (employer) contends that the 

Workers' Compensation Commission erred in (1) finding that 

employer failed to prove that Connie T. Klyver was able to 

return to her pre-injury work as of August 6, 1998; (2) finding 

that Dr. Howard Stern's August 6, 1998 examination of Klyver 

constituted a second independent medical examination which 

required authorization under Code § 65.2-607; (3) finding that 

Klyver's compensable back injury rather than her unrelated knee 

injury continued to disable her from returning to her pre-injury 

employment; and (4) failing to address the issue of whether 

Klyver unjustifiably refused medical treatment as a result of 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 
her inability to continue work hardening due to her knee 

condition. 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. See

Rule 5A:27. 

 "General principles of workman's compensation law provide 

that '[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)). The commission's findings are binding and conclusive 

upon us, unless we can say as a matter of law that employer's 

evidence sustained its burden of proof. See Tomko v. Michael's 

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

I. 

 On July 28, 1998, Dr. Sheryll A. Bryan, Klyver's treating 

physician, who diagnosed Klyver as suffering from chronic 

sacroiliac joint dysfunction, opined that Klyver could not 

return to her pre-injury work as a courier and that she would 

need to consider other job options. On August 20, 1998, Dr. 

Bryan confirmed that Klyver's low back problem was due to her 

compensable March 20, 1997 injury by accident and that Klyver 

- 2 -
was not capable of returning to her pre-injury job as a courier 

due to her low back problems. 

 Dr. Bryan referred Klyver to Sheltering Arms Hospital for 

work hardening. Dr. Katherine Dec, who followed Klyver during 

the work hardening program, noted that as of July 23, 1998, 

Klyver continued to suffer from right SI joint dysfunction, for 

which she should follow-up with Dr. Bryan. 

 Dr. W.E. Thompson performed an independent medical 

examination of Klyver at the request of employer on April 17, 

1998. Dr. Thompson concluded that Klyver would benefit from 

completing the work hardening program and that she should be 

able to return to unrestricted work upon completion of such a 

program. 

 On August 6, 1998, Dr. Stern examined Klyver at employer's 

request. Although Klyver would not allow Dr. Stern to examine 

her back because she understood that the examination was to be 

limited to her knee problem, Dr. Stern concluded that Klyver's 

back had reached maximum medical improvement and that she could 

return to her pre-injury work as a courier. Dr. Stern believed 

he possessed enough information based upon Klyver's medical 

records to render an opinion to a reasonable degree of medical 

certainty regarding her ability to return to work with respect 

to her back condition. 

 In denying employer's application to terminate Klyver's 

award, the commission accepted the opinions of Drs. Bryan and 

- 3 -
Dec and rejected the contrary opinion of Dr. Stern. In so 

holding, the commission found as follows: 

Dr. Stern examined [Klyver] on one occasion. 

He was not allowed to examine [her] lower 

back. Because this was a second independent 

evaluation, [Klyver] was within her rights 

to decline such evaluation. In his 

deposition testimony, [Dr. Stern] indicated 

that his decision was based on [Klyver's] 

diagnostic testing and medical reports from 

other physicians. He did note that there 

was some objective evidence; however, 

whether [Klyver] had pain on any given day 

would not change his opinion. 

 We find far more persuasive the reports 

of Dr. O'Bryan [sic], [Klyver's] treating 

physician, including the August 20, 1998, 

response to the carrier and the notes of Dr. 

Dec contained in the Sheltering Arms 

reports. These physicians had the 

opportunity to examine [Klyver] completely 

and to review the same diagnostic studies 

and medical reports as Dr. Stern. They have 

been actively involved in [Klyver's] 

treatment. We find their opinion that 

[Klyver] is currently unable to return to 

her regular employment as a courier with 

[employer] far more persuasive than Dr. 

Stern's, who relied on their reports to 

reach his conclusion. 

 The commission articulated legitimate reasons for giving 

little probative weight to Dr. Stern's opinion. In light of 

these reasons and the opinions of Drs. Bryan and Dec, the 

commission was entitled to conclude that the opinions of Drs. 

Stern and Thompson did not constitute sufficient evidence to 

prove that Klyver was capable of performing her pre-injury 

employment. "Medical evidence is not necessarily conclusive, 

but is subject to the commission's consideration and weighing." 

- 4 -
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 

S.E.2d 213, 215 (1991). Moreover, the opinions and medical 

records of Drs. Bryan and Dec support the commission's 

conclusion that "[w]hile [Klyver] may also have experienced a 

knee injury, the weight of the evidence is that her back 

continues to disable her from returning to her regular 

employment." 

 Because the medical evidence was subject to the 

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

of law that the evidence proved that as of August 6, 1998 Klyver 

was capable of returning to her pre-injury employment. 

II. 

 Employer requests that we reverse the commission's finding 

that Dr. Stern's examination constituted a second independent 

medical examination which required prior approval from the 

commission pursuant to Code § 65.2-607. 

 Even though the commission found Dr. Stern's examination 

was not properly authorized, it considered Dr. Stern's medical 

reports in their entirety, along with the remaining medical 

records. By doing so, the commission rendered this issue moot. 

Accordingly, we will not address it. This Court does not render 

advisory opinions on moot questions. See Commonwealth v. 

Harley, 256 Va. 216, 219, 504 S.E.2d 852, 854 (1998). 

- 5 -
III. 

 Employer did not request at the hearing before the deputy 

commissioner or on review before the full commission that 

Klyver's benefits be terminated or suspended on the ground that 

she had refused medical treatment because she was removed from 

work hardening due to her knee injury.1 Accordingly, we will not 

consider this theory of recovery for the first time on appeal. 

See Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355 

S.E.2d 347, 349 (1987); Rule 5A:18. 

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

Klyver's request that the costs of this proceeding be assessed 

against employer is granted. 

 Affirmed.

 1

 We note that on the August 18, 1998 Employer's Application 

for Hearing, employer indicated that Klyver was taken out of 

work hardening due to an unrelated knee problem as of July 24, 

1998. However, employer did not indicate that Klyver had 

refused medical treatment and did not raise this issue at the 

hearing before the deputy commissioner or upon review to the 

full commission. 

- 6 -