                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


WOODROW W. MOORE, JR.

v.    Record No. 0450-01-1

ALLIED SYSTEMS, LTD. and
 RELIANCE NATIONAL INDEMNITY COMPANY
                                                MEMORANDUM OPINION*
and                                                  PER CURIAM
                                                    JUNE 19, 2001
ALLIED SYSTEMS, LTD. and
 RELIANCE NATIONAL INDEMNITY COMPANY

v.    Record No. 0512-01-1

WOODROW W. MOORE, JR.


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Woodrow W. Moore, Jr., pro se, on brief.)

             (Adam S. Rafal; Kelly O. Stokes; Vandeventer
             Black, LLP, on brief), for Allied Systems,
             Ltd. and Reliance National Indemnity Company.


      Woodrow W. Moore, Jr. (claimant) contends that the Workers'

Compensation Commission erred in finding that he failed to prove

that he was disabled from performing his pre-injury work between

July 6, 1999 and August 3, 1999 as a result of his compensable

March 9, 1999 and March 13, 1999 work-related accidents.        On

cross-appeal, Allied Systems, Ltd. and its insurer (hereinafter

referred to as "employer") contend that the commission erred in


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(1) considering the August 3, 1999 office notes of Dr. Lawrence

Morales that were not in the record before the deputy

commissioner; and (2) finding that claimant proved that medical

treatment rendered by Meyersdale Medical Center, Dr. Timothy

Budorick, and Dr. Morales was causally related to claimant's

compensable March 9 or 13, 1999 work-related accidents.      Upon

reviewing the record and the parties' briefs, we conclude that

these appeals are without merit.    Accordingly, we summarily

affirm the commission's decision.     See Rule 5A:27.

     I.   Disability between July 6, 1999 and August 3, 1999

     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).

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.     See Tomko v. Michael's

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

     In denying claimant temporary total disability benefits for

the period from July 6, 1999 through August 3, 1999, the

commission found as follows:

               The claimant did not show . . . that he
          was forced to miss work between July 6 and
          August 3, 1999, as there was no medical
          evidence restricting him from work. Dr.
          Budorick noted on June 22, 1999, that the
          claimant should remain out of work for two
          weeks, after which time he would "return to
          work most likely." The claimant did not
          return to Dr. Budorick, however, and Dr.
          Morales noted on August 3, 1999, that the
          claimant was working and did not recommend
          that he discontinue working. The claimant
          was required to produce medical evidence
          supporting his claim that he was medically
          unable to work between July 6 and August 3,
          1999. We do not believe that he made this
          showing.

     The commission's findings are amply supported by the

medical records of Drs. Budorick and Morales.   Based upon the

lack of any persuasive medical evidence that claimant was

disabled from work between July 6 and August 3, 1999 as a result

of his compensable injuries, we cannot find as a matter of law

that the claimant's evidence sustained his burden of proof.

          II.   Dr. Morales' August 3, 1999 Office Note

     In deciding to consider Dr. Morales' August 3, 1999 office

note, the commission found as follows:

               The employer objects to our considering
          Dr. Morales' August 3, 1999, office note as
          "after discovered evidence." The deputy
          commissioner noted in the August 29, 2000,
          Opinion that the August 3, 1999, note was
          not contained in the record. The claimant
          submitted this record in his written
          statement on Review. The transcript of the
          August 8, 2000, hearing indicated that the
          deputy commissioner queried the parties at
          the hearing whether any additional medical
          records required submission, and the
          claimant submitted Dr. Morales' records from
          August to September 1999. The deputy
          commissioner responded that he "had those,"
          and returned the records to the claimant.
          We believe under these circumstances, the
          claimant appropriately submitted the
          August 3, 1999, record for our consideration
          on Review.
     Based upon this record, the commission could reasonably

infer that claimant submitted Dr. Morales' August 3, 1999 office

note to the deputy commissioner at the hearing, but that the

deputy commissioner returned it to claimant under the mistaken

belief that all of Dr. Morales' August and September 1999

medical records were already in the commission's file.   Under

these circumstances, Dr. Morales' August 3, 1999 office note did

not constitute "after-discovered evidence," and the commission

did not abuse its discretion by considering it on review.

               III.   Medical Treatment (Causation)

     "The actual determination of causation is a factual finding

that will not be disturbed on appeal if there is credible

evidence to support the finding."   Ingersoll-Rand Co. v. Musick,

7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).

     In ruling that claimant proved a causal connection between

his medical treatment and his March 9 and 13, 1999 work-related

accidents, the commission found as follows:

               The June 3, 1999, emergency room record
          indicated that the claimant had been
          suffering from back pain "over the last
          several months." The claimant credibly
          testified that he suffered back pain
          on-and-off since the March 9 and 13, 1999,
          accidents, and only decided on June 3, 1999,
          that he could not go without treatment any
          longer. He testified that he reported the
          March 9, 1999, accident to his employer, and
          "filled out" something concerning the
          accident with either Tracy or Brenda,
          administrative employee's [sic] with the
          employer. No panel was provided, however,
          and he decided to seek emergency treatment
          on June 3, 1999.

               Dr. Budorick's notes corroborated this
          testimony in that they described the
          claimant as suffering from intermittent back
          symptoms for some time. Moreover, Dr.
          Budorick described the claimant recalling
          "certain positions" as aggravating his back
          symptoms.

     The commission's findings are supported by credible

evidence, including the emergency room reports, claimant's

testimony, and the medical reports of Drs. Budorick and Morales.

Based upon these findings, the commission, as fact finder, could

reasonably infer that "claimant has suffered from intermittent

back pain since the March 9 and 13, 1999, compensable accidents,

and that the treatment he received at the emergency room and

with Dr. Budorick and Dr. Morales stemmed from those accidents."

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

                                                           Affirmed.
