COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

JANIE ELIZABETH HOLMAN
MEMORANDUM OPINION
v. Record No. 0028-97-3 PER CURIAM
MAY 27, 1997
SOUTHWESTERN VIRGINIA
MENTAL HEALTH INSTITUTE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Lawrence L. Moise, III; Vinyard & Moise, on
brief), for appellant.

(James S. Gilmore, III, Attorney General;
James W. Osborne, Assistant Attorney General,
on brief), for appellee.

Janie Holman (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that
(1) she failed to prove she remained totally disabled as a result
of her compensable August 1, 1990 injury by accident; and (2) she
failed to prove that she marketed her residual capacity. 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. See R.G. Moore Bldg. Corp. v.
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 her 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's change in condition application and
finding that her evidence failed to establish that she could not
return to any form of employment, the commission found as
follows:
Dr. [Neal A.] Jewell, who has treated
the claimant since 1991, has indicated that
she can return to some form of employment,
albeit not her preinjury work. We are not
persuaded by Dr. [William E.] Kennedy's
opinion, nor that of his referral, Dr.
[Norman E.] Hankins. The general rule is
that, when 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, 339
S.E.2d 570 (1986). Additionally, Drs.
Kennedy and Hankins base their opinions on
x-rays taken in 1994, instead of more recent
studies. Based on Dr. Jewell's opinion, we
find that the claimant has residual capacity.
As she has failed to market this capacity,
she is not entitled to benefits.
The commission's findings are supported by Dr. Jewell's
medical records and opinions. As fact finder, the commission was
entitled to accept Dr. Jewell's opinions and to reject the
contrary opinions of Drs. Kennedy and Hankins. "Questions raised
by conflicting medical opinions must be decided by the
commission." Penley v. Island Creek Coal Co., 8 Va. App. 310,
318, 381 S.E.2d 231, 236 (1989). We find no merit in claimant's
argument that the commission was required to accept Dr. Hankins'
opinion because he was the sole vocational expert. Nothing in
the record indicates that Dr. Jewell was not qualified to render
an opinion regarding claimant's ability to work.
Based upon this record, we cannot say as a matter of law
that claimant's evidence sustained her burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.

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