                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia


UNITED AIRLINES, INC.
                                            MEMORANDUM OPINION* BY
v.   Record No. 1902-00-2                JUDGE JERE M. H. WILLIS, JR.
                                                MARCH 20, 2001
RICHARD G. RICE, JR.


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Michael N. Salveson (Hunton & Williams, on
          brief), for appellant.

          (Benjamin M. Smith, Jr.; Kilgore & Smith, on
          brief), for appellee. Appellee submitting on
          brief.


     United Airlines, Inc., (United) appeals from a decision of

the Workers' Compensation Commission, reversing the opinion of

the deputy commissioner, and denying its application alleging a

change in condition.    United contends that the commission erred

in finding that Richard G. Rice, Jr., could not return to his

pre-injury employment as of April 19, 1999.     We reverse the

commission's decision.

                            I.   BACKGROUND

     On November 8, 1995, Rice sustained compensable injuries to

his left shoulder and right foot while employed as a ramp

serviceman for United.   Awards were entered in his favor, first


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
for temporary total disability and then for temporary partial

disability.

        On June 21, 1999, United filed a change-in-condition

application alleging that Rice could return to his pre-injury

employment as of April 19, 1999, and seeking termination of his

award.    United based its application on the medical reports of

Dr. Edward G. Alexander, Jr., dated April 19, 1999 and May 25,

1999.

        The deputy commissioner terminated Rice's award, holding

that United had proved by a preponderance of the evidence that

Rice was capable of returning to his pre-injury employment as of

April 19, 1999.

        The full commission reversed the opinion of the deputy

commissioner, holding that the preponderance of the evidence

proved that Rice cannot perform his pre-injury employment.

                             II.    ANALYSIS

        On appellate review, we view the evidence in the light most

favorable to the party prevailing below.       See R.G. Moore Bldg.

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990).    The commission's findings of fact are binding and

conclusive on appeal when supported by credible evidence.        See

Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533

(1986) (citations omitted).    "General principles of workman's

compensation law provide that '[i]n an application for review of


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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).

     In holding that United failed to prove that Rice could

return to his pre-injury employment, the commission stated:

          [Rice's] treating physician, Dr. Alexander,
          assigned permanent restrictions of no
          lifting over 30 pounds and no overhead work
          effective February 1, 1996. In May 1999,
          Dr. Alexander "estimated" [Rice's] present
          functional capacity and concluded that he
          would be able to perform his preinjury
          employment, effectively lifting all
          restrictions. However, he clearly
          attributed the ongoing complaints of pain to
          the compensable accident. On June 28, 1999,
          after [Rice] expressed concern that he would
          not be able to perform his preinjury
          employment consistently, Dr. Alexander
          amended his opinion to reflect that there
          was a "good probability that [Rice] could
          not consistently perform [his preinjury] job
          functions without missing time from
          work. . . ." This opinion is buttressed by
          the actual FCE findings, which reflect that
          he is unable to lift up to 70 pounds, as his
          preinjury employment requires.

               Although Dr. Freedman disagreed with
          Dr. Alexander's June 28, 1999, caveat, we
          place greater weight on Dr. Alexander's
          opinion, as he has been the treating
          physician for over four years. Furthermore,
          we note that Dr. Freedman did not have the
          benefit of the October 6, 1999, FCE findings
          or a copy of [Rice's] preinjury job
          description.

               Dr. Alexander's opinion that there is a
          "good probability" that [Rice] cannot
          consistently perform his preinjury job

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          functions without missing time from work, in
          essence suggests that he is no longer able
          to do the job. Thus, we find that [Rice]
          has not been released to his preinjury
          employment.

(Citation omitted.)

     In May 1999, Dr. Alexander released Rice to his pre-injury

employment.    His June 28, 1999 opinion expressed concern that

there was "a good probability" that Rice might, in the future,

miss some time from work, was mere supposition, a prospective

concern that disability might reoccur.   That eventuality may not

come to be.    If it does, upon proper proof, an appropriate award

may be made.   If it does not, no further award is appropriate.

     The decision of the commission is reversed.    The commission

is directed to enter an order granting United's application and

terminating Rice's award.

                                                         Reversed.




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