COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

PAUL ALLEN MASON 

v. Record No. 2365-95-3 MEMORANDUM OPINION*

 PER CURIAM 

WYTHEVILLE GOLF CLUB, INC. JUNE 11, 1996 

AND 

VIRGINIA COMMERCE GROUP 

 SELF-INSURANCE ASSOCIATION 

 FROM THE VIRGINIA 

WORKERS' COMPENSATION COMMISSION 

 (Paul Allen Mason, pro se, on brief). 

 (Ruth Nathanson Carter; Midkiff & Hiner, on 

brief), for appellee Wytheville Golf Club, 

Inc. 

 No brief for appellee Virginia Commerce 

Group Self-Insurance Association. 

 Paul Allen Mason ("claimant") contends that the Workers' 

Compensation Commission erred in denying his change in condition 

application on the ground that he failed to prove that his back 

symptoms and psychological treatment were causally related to his 

compensable February 2, 1993 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. R.G. Moore Bldg. Corp. v. 

 

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

designated for publication. 
 2 

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

"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)). 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. Tomko 

v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 

835 (1970). 

 On February 2, 1993, claimant sustained a lower back sprain. 

 In an October 3, 1994 opinion, the commission found that 

claimant had been released by his treating physicians to return 

to his pre-injury employment without restrictions effective March 

3, 1994. This decision was not appealed. On October 24, 1994, 

claimant filed a change in condition application alleging 

additional disability due to his back condition and causally 

related psychological treatment, which began in September 1994. 

 At all times after March 3, 1994, Drs. James M. Leipzig, an 

orthopedist, and Murray E. Joiner, Jr., a physiatrist, could find 

no objective evidence of an injury and no objective basis for 

claimant's continuing subjective complaints. As early as June 
 3 

1993, Dr. Joiner characterized claimant as a malingerer. By 

February 8, 1994, he found that claimant had reached maximum 

medical improvement and released him to return to his pre-injury 

work without restrictions. From February 1994 through July 1994, 

claimant sought no medical treatment for his alleged back injury. 

 In July 1994, claimant returned to Dr. Leipzig, who could not 

explain claimant's symptoms and indicated that he had "no clear 

answer for him with regard to etiology or treatment." Dr. 

Leipzig referred claimant to Dr. Andrew J. Cepulo, a 

rehabilitation specialist. 

 On August 8, 1994, although Dr. Cepulo imposed certain work 

restrictions upon claimant, he admitted he had no explanation for 

claimant's assertion that his back kept "going out." Dr. Cepulo 

noted that there was "nothing focal going on . . . to explain 

such a complaint." When claimant revealed to Dr. Cepulo in a 

September 20, 1994 office visit that he had been physically 

abused as a child, and therefore, was having difficulty dealing 

with his pain, Dr. Cepulo referred him to Dr. Neil Dubner, a 

psychiatrist. 

 Dr. Dubner began treating claimant on September 22, 1994. 

Claimant gave Dr. Dubner a history of depression due to his "pain 

syndrome." Dr. Dubner was apparently unaware of claimant's past 

history of emotional trauma, drug and alcohol abuse, and 

incarceration. Based solely upon the history given to him by 

claimant, Dr. Dubner opined that claimant's emotional dysfunction 
 4 

was causally related to the February 2, 1993 injury and its 

residuals. 

 On April 12, 1995, Dr. Kevin F. Hanley, an orthopedist, 

reviewed claimant's medical records for employer. Dr. Hanley 

concluded that claimant's failure to respond to the conservative 

management protocols directed towards him was a clear indication 

of malingering and embellishment. Dr. Hanley noted that the 

objective findings did not indicate any significant injury to the 

spinal axis nor did they support claimant's present complaints. 

He opined that claimant's continuing discomfort was fabricated 

and not substantiated by the medical records. Dr. Hanley saw no 

evidence to support any disability. 

 The commission denied claimant's application, finding that 

he failed to prove any physical change in his condition since the 

commission terminated his compensation on March 3, 1994. This 

finding is amply supported by the medical records and opinions of 

Drs. Leipzig, Joiner, Cepulo, and Hanley. Based upon this lack 

of any persuasive objective medical evidence supporting a 

functionally incapacitating injury, we cannot find as a matter of 

law that claimant sustained his burden of proving causally 

related disability due to his alleged continuing back symptoms. 

 Moreover, in its role as fact finder, the commission was 

entitled to determine what weight, if any, was to be given to Dr. 

Dubner's opinion. "It lies within the commission's authority to 

determine the facts and the weight of the evidence . . . ." Rose 
 5 

v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396 

S.E.2d 392, 395 (1990). Dr. Dubner based his opinion upon an 

inaccurate and incomplete psychological history. Where a medical 

opinion is based upon an incomplete or inaccurate medical 

history, the commission is entitled to conclude that the opinion 

is of little probative value. See Clinchfield Coal Co. v. 

Bowman, 229 Va. 249, 251-52, 329 S.E.2d 15, 16 (1985). 

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

 Affirmed.