Dennis Ray McGuire v Dobbs International, etc etal

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
DENNIS RAY McGUIRE
v. 	Record No. 0352-95-2 	MEMORANDUM OPINION*
PER CURIAM
DOBBS INTERNATIONAL SERVICES, INC. 	SEPTEMBER 26, 1995
AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Dennis Ray McGuire, pro se, on brief).
(Susan A. Evans; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellees.
Dennis R. McGuire ("claimant") contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that (1) he sustained a back injury causally related to his March
7, 1994 compensable injury by accident; and (2) he made a
reasonable effort to market his residual capacity between March
20, 1994 and May 23, 1994. 	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.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. 	Back Injury
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

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Unless we can say as a matter of law that claimant's evidence
sustained his burden of proving that he sustained a back injury
causally related to his March 7, 1994 injury by accident, 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).
In holding that claimant sustained a compensable head injury
on March 7, 1994, but that he failed to prove he sustained a back
injury causally related to the March 7, 1994 injury by accident,
the commission found as follows:
Dr. [Richard] Leschek's opinion is not
persuasive because his reports show he was
misinformed regarding the accident and the
timing of the claimant's complaints. 	He
noted the claimant had been knocked down,
which is contrary to the testimony of both
the claimant and Craig Cooper, who witnessed
the accident. 	Dr. Leschek's reports also
record a history of back pain immediately
after the accident. 	In contrast, the
claimant testified he did not notice any
injury immediately after the accident other
than a knot on the head, and that by March 9
he noticed numbness but no back pain.
Moreover, the Employer's First Report of
Injury did not reference any back injury nor
did the claimant's March 17, 1994 Claim for
Benefits.
The testimony of claimant and Cooper, as well as the
accident report and the Claim for Benefits form, support the
commission's finding that claimant did not sustain a back injury
on March 7, 1994. 	Both claimant and Cooper unequivocally
testified that claimant was hit on the head, but not knocked
down. 	Claimant did not notice back pain immediately after the

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accident nor did he tell Cooper that he had hurt his back. 	On
the accident report and the Claim for Benefits, claimant reported
only a head injury.
In its role as fact finder, the commission was entitled to
determine what weight, if any, to give to Dr. Leschek's opinion.
"It lies within the commission's authority to determine the
facts and the weight of the evidence . . . ." 	Rose v. Red's
Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392,
395 (1990). 	Where a medical opinion is based upon an incomplete
or inaccurate medical history, the commission is entitled to
conclude that the opinion was of little probative value. 	See
Clinchfield Coal Co. v. Bowman, 229 Va. 249, 251-52, 329 S.E.2d
15, 16 (1985). 	Since Dr. Leschek's opinion that claimant's back
injury was caused by the March 7, 1994 accident was based upon an
inaccurate history, the commission did not err in rejecting Dr.
Leschek's opinion. 	Absent Dr. Leschek's opinion, there was no
evidence of a causal connection between the March 7, 1994
industrial accident and claimant's back condition.
Based upon this record, we cannot say as a matter of law
that claimant's evidence sustained his burden of proving that he
sustained a back injury causally related to the March 7, 1994
injury by accident.
II.
The medical records reflect that claimant's work
restrictions and continuing partial disability were related

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solely to his back condition. 	Since we find that the commission
did not err in ruling that claimant failed to prove a compensable
back injury, we need not address the marketing issue as it is
moot.
For these reasons, we affirm the commission's decision.
Affirmed.