COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

A & K SERVICE CORPORATION
AND
EMPLOYERS INSURANCE OF WAUSAU
MEMORANDUM OPINION
v. Record No. 1410-97-2 PER CURIAM
NOVEMBER 10, 1997
ROBERT D. VANDYKE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Deborah S. O'Toole; Cowan & Owen, P.C., on
brief), for appellants.

(Laura A. McDonald; Geoffrey R. McDonald,
P.C., on brief), for appellee.

A & K Service Corporation and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission erred in finding that employer failed to prove that
Robert D. VanDyke (claimant) was released to return to his
pre-injury employment without restrictions as of September 27,
1996. 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.
"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)). The commission's findings are binding and
conclusive upon us, unless we can say as a matter of law that
employer proved that claimant was fully able to perform the
duties of his pre-injury employment. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying employer's application, the commission found as
follows:
Dr. [Ralph E.] Hagan indicated that the
claimant could return to work on April 1,
1996, but with the assistance of a helper,
i.e., a conditional release to "work." He
has not specifically indicated a return to
full-duty work. The burden of proof lies
with the moving party, the employer in this
case, and they have failed to meet their
burden. Dr. [Walter N.] Rabhan's report of
September 27, 1996, also fails to meet the
employer's burden of proof. We do not rely
on his one-time examination, some 11 months
after the injury.
The commission articulated legitimate reasons for giving
little probative weight to Dr. Hagan's conditional work-release
and for rejecting the opinion of Dr. Rabhan. In light of these
reasons, the commission was entitled to conclude that those
medical reports did not constitute sufficient evidence to prove
that claimant was capable of carrying out all of the duties of
his pre-injury employment. "Medical evidence is not necessarily
conclusive, but is subject to the commission's consideration and
weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App.
675, 677, 401 S.E.2d 213, 215 (1991).
Because the medical evidence was subject to the commission's
factual determination, we cannot find as a matter of law that the
evidence proved that as of September 27, 1996, claimant was
capable of returning to his pre-injury employment. Accordingly,
we affirm the commission's decision.
Affirmed.

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