                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


NOEL THOMAS WAKELYN, JR.
                                             MEMORANDUM OPINION*
v.   Record No. 1332-02-2                         PER CURIAM
                                              DECEMBER 31, 2002
SPAIN COMMERCIAL INTERIORS, INC. AND
 STATE FARM FIRE & CASUALTY COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Noel Thomas Wakelyn, Jr., pro se, on brief).

             (Kathryn Spruill Lingle; Theisen & Lingle,
             P.C., on brief), for appellees.


     Noel Thomas Wakelyn, Jr. (claimant) contends the Workers'

Compensation Commission erred in finding that he failed to prove

that (1) he sustained a compensable change-in-condition

entitling him to an award of temporary partial disability

("TPD") from May 12, 1999 through August 4, 1999; an award of

temporary total disability ("TTD") benefits for August 5, 1999

and for August 18, 1999 through September 19, 1999; and an award

of TPD benefits for August 6 through August 17, 1999 and from

September 20, 1999 and continuing; (2) he reasonably marketed

his residual work capacity after September 1999, when he began

attending college; and (3) his back condition was a compensable

consequence of his compensable September 26, 1997 left heel


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
injury.   Upon reviewing the record and the parties' briefs, we

conclude that this appeal is without merit.      Accordingly, we

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

                      I.   Change-in-Condition

     "General principles of workman's compensation law provide

that 'in 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 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).

     On May 12, 1999, Dr. David Durica issued the following work

restrictions for claimant:   no lifting over twenty-five pounds

for more than two hours per day, no lifting over fifteen pounds

for more than eight hours per day, no walking or standing for

more than two hours per day without a break or for more than

four hours per day without intermittent breaks, no kneeling or

squatting for more than two hours per day, no climbing more than

one flight of stairs at a time; no climbing ladders, and no

twisting or bending more than six times per hour.     These
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restrictions remained in effect, except for the period from

August 18 through September 15, 1999, when claimant was supposed

to have been off all work, according to Dr. Durica.

     Claimant testified that since May 12, 1999, he had worked

for his stepfather at M & M Enterprises installing skirting on

house trailers and small decks for house trailers.    He admitted

that he worked for M & M Enterprises in September 1999.   He also

worked for Island Installations, doing work similar to his work

for Stanley Fixtures, a company that he worked for in July and

August 1999.   Claimant also worked for Southwest Recreational,

where he installed "astroturf" on athletic fields at the College

of William and Mary.   He claimed that all the work he performed

fell within his restrictions issued by Dr. Durica.    He also

claimed that his supervisor at Stanley Fixtures, Vernon Lee, was

aware of and accommodated his 1997 work injury.

     Lee testified that claimant was "just like everybody else,

he was a journeyman carpenter."   Lee saw claimant working on

six-foot ladders and scaffolding.   Lee testified that claimant

worked on a Baker's scaffold that rises to a height of

approximately six feet.   In order to work on a Baker's scaffold,

an individual must step on round rungs and climb.    Lee stated

that with respect to lifting requirements while claimant worked

at Stanley Fixtures "[a] lot of this stuff is pretty

heavy. . . .   There is some light stuff, but most of it is

pretty heavy and its takes two or three people to pick up some
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of it to put it on a dolly or something like that to roll it to

where you are going to install it."   Lee stated that some things

"probably weighed two or 300 pounds."   Contrary to claimant's

testimony, Lee denied providing claimant any special

accommodations.   Lee also denied that he knew of claimant's 1997

work injury.   Lee was not aware that anyone helped claimant on

the job.

     Dr. Tushar Gajjar, who began treating claimant in February

2000, reported in a March 22, 2000 office note that claimant had

a scar on his nose, reportedly sustained when he was fixing

gutters at his mother's residence.    In a May 11, 2000 office

note, Dr. Gajjar reported that claimant did not appear to have

an obvious alteration of his gait while walking into or out of

the examination room.   Dr. Gajjar noted that at that time

claimant reported walking distances up to one and one-half

miles.   In his April 15, 2001 report, Dr. Gajjar noted that

claimant had undergone diagnostic procedures, which resulted in

non-physiologic responses.   Dr. Gajjar noted that claimant has

given "indications on past visits that he is essentially

unlimited in activity levels and there has been no worsening of

atrophy in the lower extremity."

     Based upon this evidence, the commission concluded as

follows:

           [T]he evidence demonstrates that the
           claimant's treating physician had imposed
           significant restrictions on the claimant's
                              - 4 -
          ability to work beginning May 12, 1999.
          However, the evidence also clearly shows
          that the claimant ignored those work
          restrictions and performed physically
          demanding work of a nature akin to his
          pre-injury employment. There is no evidence
          that the claimant attempted to find or
          perform work within the bounds of the
          restrictions placed by his physician.

               We find that the claimant's conduct in
          performing such work is superior evidence of
          his actual physical capacity than the
          medical reports that imposed the work
          restrictions. Since the claimant's actual
          conduct during the period from May 12, 1999,
          through August 31, 1999, demonstrated that
          he was able to perform work substantially
          similar to his pre-injury employment, the
          Act precludes us from awarding compensation
          for temporary partial incapacity during that
          period.

     In light of Dr. Gajjar's medical records, evidence of

claimant's actual performance of work that exceeded his

restrictions during the claimed time periods, and Lee's

testimony, we cannot find as a matter of law that claimant's

evidence proved he sustained a change-in-condition as of May 12,

1999, entitling him to an award of TTD or TPD benefits.

                         II.     Marketing

     Because we affirm the commission's ruling that claimant

failed to meet his burden of proving a change-in-condition, we

need not address the marketing issue.

                      III.     Back Condition

     In ruling that claimant failed to prove that his back

condition was a compensable consequence of his compensable

                               - 5 -
September 26, 1997 left heel injury, the commission found as

follows:

           Dr. . . . Durica noted on September 8, 1999,
           that the claimant's back pain, which had
           begun in April 1999 after a trial use of a
           cast on his foot, was probably the result of
           "gait problems due to his protection of the
           left leg." The claimant did not treat with
           Dr. Durica after September 1999, and began
           pain management treatment with Dr. . . .
           Gajjar in February 2000. Dr. Gajjar noted
           on April 18, 2001, that the claimant had not
           complained of back pain to him during his
           treatment. Thus, we agree with the deputy
           commissioner that the claimant did not prove
           that his back problems were the result of
           the 1997 injury, especially considering that
           the claimant's treating physician during
           2000 did not observe any back problems or
           note any back problems.

     "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).   As fact finder, the commission was

entitled to give little weight to Dr. Durica's opinion in light

of the evidence that he had not treated claimant since September

1999 and that claimant's back pain did not begin until more than

one and one-half years after the compensable foot injury.

     The commission relied upon the response of Dr. Gajjar to

employer's counsel's April 11, 2001 questionnaire, in which he

indicated that he could not relate claimant's back condition to

his compensable 1997 foot injury.     Even if we were to assume, as

claimant argues, that the commission erroneously relied upon

                              - 6 -
Dr. Gajjar's opinion because it was based upon his incorrect

assumption that claimant did not complain of back pain during

his treatment, the commission's finding is binding and

conclusive upon us.   Absent Dr. Durica's opinion, which the

commission, as fact finder, was entitled to reject, the record

contains no credible evidence of a causal connection between

claimant's back condition and his September 26, 1997 compensable

foot injury.   Accordingly, we cannot find as a matter of law

that claimant's evidence sustained his burden of proof.

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

                                                          Affirmed.




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