COURT OF APPEALS OF VIRGINIA

ROMINGER LEGAL

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COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

COMMUNITY HEALTH CARE -
RUSSELL COUNTY MEDICAL CENTER AND
TRANSPORTATION INSURANCE COMPANY
MEMORANDUM OPINION
v. Record No. 1420-97-3 PER CURIAM
OCTOBER 21, 1997
CORDELIA C. HANNAH

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Jennifer G. Marwitz; Law Offices of Roya
Palmer, on brief), for appellants.

(Gregory R. Herrell; Arrington, Schelin &
Herrell, on brief), for appellee.

Community Health Care - Russell County Medical Center and
its insurer (hereinafter referred to as "employer") appeal a
decision of the Workers' Compensation Commission denying
employer's application alleging a change-in-condition. Employer
contends that the commission erred in finding that it failed to
prove that (1) Cordelia Hannah (claimant) had been released on
September 10, 1996, to return to her pre-injury work, and (2) her
continuing disability was not causally related to her compensable
September 10, 1993 injury by accident. Finding no error, we
affirm the commission's decision.
"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)). "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). 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 capable of returning to
her pre-injury employment or that her continuing disability was
no longer causally related to her compensable injury by accident.
See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173
S.E.2d 833, 835 (1970).
In finding that employer's evidence failed to sustain its
burden of proof, the commission was not persuaded by the opinion
of the independent medical examiner, Dr. Glenn Freeman. In so
ruling, the commission found as follows:
Four physicians have treated or examined
the claimant. It is Dr. Freeman's view
that the claimant made an excellent
recovery from her injury three years ago
and that when seen on September 10, 1996,
had returned to her pre-injury status. Dr.
[Calvin J.] Johnson examined the claimant
on December 5, 1996 and has written two
inconsistent reports. . . . Against this,
Dr. [Dwight L.] Bailey could "[n]ot see how
that this patient can return to her work as
a nurse, lifting and moving patients."
Dr. [Jim C.] Brasfield served as the
claimant's treating physician until June 7,
1994. We find that his last report is
ambiguous. While he says that his exam did
not "[s]uggest to me restrictions," he also
says that the claimant is capable of work
activities "[a]s I have so noted." The
only work activity that he had noted was
light duty with restrictions against
lifting more than 50 pounds. It does not
appear there has been any attempt, either
through interrogatories or another
examination, to clarify this ambiguity.
We do not find Dr. Freeman's opinion
persuasive because of Dr. Bailey's contrary
opinion and because of the ambiguity in Dr.
Brasfield's opinion.
Thus, the commission explained its decision to give little
probative weight to Dr. Freeman's opinion, resulting in the
conclusion that the medical evidence was insufficient to prove
either that claimant was capable of performing the duties of her
pre-injury employment or that her continuing disability was no
longer causally related to her compensable injury by accident.
We are unable to find as a matter of law that the evidence proved
otherwise and, therefore, affirm the decision.
Affirmed.

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