¶1concurring in part and dissenting in part.
¶2Although I concur with the decision of the majority that the case should be reversed, I feel that we should dismiss the case *304rather than remanding it for further disposition.
¶3A claimant has the burden of proving by a preponderance of the evidence that he is entitled to workers’ compensation. See Connor v. Bragg, 203 Va. 204, 207-08, 223 S.E.2d 393, 396 (1962); Van Geuder v. Commonwealth, 192 Va. 548, 557, 65 S.E.2d 565, 570 (1951). When a litigant fails to meet this burden of proof, the compensation must be denied. See, e.g., Badische Corp. v. Starks, 221 Va. 910, 913, 275 S.E.2d 605, 607-08 (1981).
¶4In the present case, the deputy commissioner ruled that Tune failed to carry his burden of proof. On review, the full Commission found the evidence to be in “hopeless conflict.” Rather than dismissing the case, the Commission appointed its own independent expert, Dr. Rose, as permitted by Code § 65.1-90, to examine the claimant in order to resolve the conflict.
¶5The majority has found, and I agree, that the opinion of Dr. Rose did nothing to “tip the scales in favor of claimant.” Therefore, if the case is now remanded, as the majority orders, the Commission will be left to reconsider evidence which it has already found to be hopelessly in conflict and, thus, insufficient as a matter of law to support Tune’s claim.
¶6Code § 8.01-681 states that the “appellate court shall . . . render final judgment upon the merits whenever, in the opinion of the court, the facts before it are such as to enable the court to attain the ends of justice.” In construing a predecessor statute, the Supreme Court of Virginia has held that a case should be reversed and final judgment entered when there is “no reason to believe that, upon another trial, any new or different evidence might be introduced which ought to affect the result.” Erie Insurance Exchange v. Meeks, 223 Va. 287, 291, 288 S.E.2d 454, 457 (1982) (quoting A.C.L.R. Co. v. A.M. Walkup Co., 132 Va. 386, 395, 112 S.E. 663, 666 (1922)).
¶7Since, in the case before us, the Commission, upon remand, will be forced to reconsider evidence in “hopeless conflict,” the ends of justice and standards of judicial economy require that we dismiss claimant’s appeal.
¶8Therefore, I would reverse and dismiss.