COURT OF APPEALS OF VIRGINIA 

Present: Judges Koontz, Willis and Senior Judge Hodges 

Argued at Salem, Virginia 

TIMOTHY K. DUNCAN 

v. Record No. 1320-94-3 OPINION BY 

 JUDGE JERE M. H. WILLIS, JR. 

ABF FREIGHT SYSTEM, INC. MAY 23, 1995 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Deborah W. Dobbins (Debra Fitzgerald-O'Connell; 

Gilmer, Sadler, Ingram, Sutherland & Hutton, 

 on briefs), for appellant. 

 Roger L. Williams (Roya Palmer; Williams & 

Pierce, on brief), for appellee. 

 On appeal from a decision of the Virginia Workers' 

Compensation Commission terminating his temporary total 

disability benefits, Timothy K. Duncan contends (1) that no 

credible evidence supports the commission's finding that he was 

released to pre-injury work and that his continuing disability 

was not causally related to his June 10, 1992 compensable injury, 

(2) that the commission erred in failing to conduct an 

evidentiary hearing, and (3) that the "on the record" hearing 

conducted by the commission violated his right to due process of 

law. We find no error and affirm the commission's decision. 

 I. 

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

to the party prevailing below. Crisp v. Brown's Tysons Corner 

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). 

The findings of the commission, if based on credible evidence, 
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are conclusive and binding on this Court. Morris v. Badger 

Powhatan/Figgie Int'l Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 

877 (1986). 

 On December 31, 1992, Duncan's treating physician, Dr. 

Korsh, released Duncan to return to his pre-injury work. Dr. 

Korsh reiterated this release on April 20, 1993. This credible 

evidence supports the commission's finding that Duncan was 

released to perform pre-injury work with regards to his 

compensable back injury. "[W]hen an attending physician is 

positive in his diagnosis, great weight will be given by the 

courts to his opinion." Pilot Freight Carriers, Inc. v. Reeves, 

1 Va. App. 435, 439, 399 S.E.2d 570, 572 (1986). 

 II. 

 Duncan contends the commission's finding that his present 

condition is not causally related to his compensable industrial 

injury by accident is not supported by credible evidence. He 

argues that Dr. Horney found that the pain in his lower back and 

right testicle resulted from his June 10, 1992 accident. 

 The evidence provided by the examining physicians 

established that Duncan suffered from testalgia, but none of the 

physicians found any physiological basis to relate that condition 

to his compensable back injury. Duncan's claimed diagnosis by 

Dr. Horney was not part of the record before the commission. The 

evidence in the record shows the following: Dr. Morin, an 

orthopaedist, found that Duncan suffered from a lumbosacral 
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strain, but could not relate that condition to the testalgia. 

Dr. Korsh, a spinal surgeon, found that Duncan "has a very 

strange pain pattern not consistent with any normal neurological 

pattern." His overall impression was "that the patient most 

likely has no pathology emanating from his lumbar spine." Dr. 

Poffenberger, a urologist, diagnosed Duncan with bilateral 

testalgia, but stated it was more of a "musculoskeletal problem" 

than a urologic one. Dr. Hormel, a neurologist stated, "I cannot 

relate it clearly to his lumbar spine although certainly some 

people who have lumbar stenosis can get testalgia . . . . It is 

possible . . . that his medications are contributing to his 

testalgia . . . ." Dr. Joiner, an orthopaedist, limited Duncan 

to restrictive work duties, but never related the testalgia to 

the compensable back injury. Additionally, Duncan underwent a 

CT-scan, two MRI's, and a post-trauma myelogram, which showed no 

abnormality. This credible evidence supports the commission's 

finding. 

 III. 

 Duncan contends that the deputy commissioner erred in 

denying an evidentiary hearing. By letter of July 22, 1993, the 

deputy commissioner denied Duncan's request for an evidentiary 

hearing and concluded that "the single issue to be resolved in 

this matter is a medical issue, that matter can be resolved in 

the Dispute Resolution Department in an on-the-record hearing." 

Duncan argues that material issues remained in dispute. However, 
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Duncan did not request the full commission to review the deputy 

commissioner's denial of an evidentiary hearing. Decisions of a 

deputy commissioner that are not reviewed by the full commission 

cannot be brought before this Court. Southwest Architectural 

Products v. Smith, 4 Va. App. 474, 478, 358 S.E.2d 745, 747 

(1987). 

 IV. 

 Duncan contends that the deputy commissioner's "on the 

record" review of the case denied him due process. He argues 

that the "on the record" review did not afford him an adequate 

opportunity to be heard. 

 The deputy commissioner's utilization of the "on the record" 

hearing procedure satisfied the requirements of due process. 

"[D]ue process is flexible and calls for such procedural 

protections as the particular situation demands." Mathews v. 

Eldridge, 424 U.S. 319, 334 (1976). "[T]he fundamental requisite 

of due process of law is the opportunity to be heard." Goldberg 

v. Kelly, 397 U.S. 254, 267 (1970). An evidentiary hearing was 

not required in this case because no conflict or dispute existed 

in the claimant's medical evidence. See Williams v. Virginia 

Elec. & Power Co., 18 Va. App. 569, 577, 445 S.E.2d 693, 698 

(1994). The issues to be decided were whether the claimant had 

been released to pre-injury employment with respect to the 

industrial injury by accident, and whether his present condition 

was causally related to his compensable injury. An evidentiary 
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hearing would have produced no additional medical evidence to 

refute Duncan's assertion that he had not been released to his 

pre-injury work and that his present condition was causally 

related to his industrial accident. Because no genuine 

controversy existed, the "on the record" hearing procedure met 

the requirements of due process. 

 For the foregoing reasons, we affirm the decision of the 

commission. 

 Affirmed.