                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, McClanahan and Senior Judge Coleman


S.B. COX READY MIX, INC. AND
 CLARENDON NATIONAL INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 1080-03-2                         PER CURIAM
                                              SEPTEMBER 16, 2003
WAYNE J. SAUNDERS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Robert C. Baker, Jr.; Dobbs & Baker, on
             brief), for appellants.

             (Gregory O. Harbison; Geoffrey R. McDonald &
             Associates, on brief), for appellee.


     S.B. Cox Ready Mix, Inc. and its insurer (hereinafter

referred to as "employer") contend the Workers' Compensation

Commission erred in finding that it failed to prove that

Wayne J. Saunders (claimant) was fully capable of performing all

of the duties of his pre-injury work as of May 20, 2002.        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.

     "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


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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

employer's evidence sustained its 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 ruling that the medical evidence showed that claimant

might be capable of light-duty employment, but that employer

failed to establish that claimant could fully perform his

pre-injury work, the commission found as follows:

          [E]mployer's first examining IME physician,
          Dr. [E. Claiborne] Irby, [Jr.,] opined that
          the claimant had reached maximum medical
          improvement by November 20, 2001, and that,
          as of January 15, 2002, the claimant could
          not lift more than ten pounds. Dr. Irby
          believed that the claimant could drive but
          noted further that the claimant could sit
          only "intermittently"—thereby implying that
          the claimant could not sit, and drive, for
          long periods of time.

               The opinion of Dr. [J. Kim] Harris with
          respect to the claimant's physical
          capabilities and ability to drive does not
          differ substantially from the opinion of
          Dr. Irby. Dr. Harris has indicated that the
          claimant could work "part-time" and drive
          for short periods of time but has stated
          further, based upon his understanding of the
          employer's business, that the claimant's
          ability to work "light duty" for the
          employer is unrealistic.
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               The Commission traditionally gives
          greater weight to the unequivocal opinion of
          a claimant's treating physician than to the
          opinion of an employer's examining
          physician-in this case Dr. [Douglas A.]
          Wayne. We find no reason not to apply this
          principle in the present case, particularly
          when, as explained above, the employer's
          other expert has also recommended
          restrictions with respect to the claimant's
          ability to work. We note further that
          Dr. Wayne's opinion with respect to the
          claimant's ability to work is based, at
          least in part, upon his conclusion that the
          claimant exhibited no "objective" symptoms
          of radiculopathy. However, there is
          objective evidence of the claimant's
          radiculopathy-shown in the claimant's EMG
          taken on December 11, 2001.

               Under the circumstances, we are not
          persuaded by Dr. Wayne's opinion that the
          claimant is capable of fully performing the
          duties of his pre-injury employment.
          Instead, we accept the opinion of
          Dr. Harris, the claimant's treating
          physician, that the claimant is unable to
          return to his full duties as the operator of
          a concrete truck.

     In its role as fact finder, the commission was entitled to

weigh the medical evidence, accept the opinion of the treating

neurologist, Dr. Harris, and reject the contrary opinion of

Dr. Wayne, who examined claimant on one occasion.   "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).   Thus, based upon this record,

we cannot find as a matter of law that employer's evidence

sustained its burden of proving claimant was fully capable of



                              - 3 -
performing all of the duties of his pre-injury employment as of

May 20, 2002.

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

                                                        Affirmed.




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