                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


ARC ELECTRIC, INC. AND
 SAFEGUARD INSURANCE COMPANY
                                                 MEMORANDUM OPINION *
v.   Record No. 2037-97-2                            PER CURIAM
                                                  DECEMBER 23, 1997
JAMES A. GODWIN, JR.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Benjamin J. Trichilo; Trichilo, Bancroft,
           McGavin, Horvath & Judkins, on brief), for
           appellants.
           No brief for appellee.



     ARC Electric, Inc. and its insurer (hereinafter referred to

as "employer") contend that the Workers' Compensation Commission

erred in finding that employer failed to prove that James A.

Godwin, Jr. was released to return to his pre-injury work.       Upon

reviewing the record and the employer's brief, we conclude that

this appeal is without merit.    Accordingly, we summarily affirm

the commission's decision.     See Rule 5A:27.

     Pursuant to a memorandum of agreement, the commission

entered an award in favor of Godwin for temporary total

disability.   In response to the employer's application for a

hearing, the commission held that the medical reports of Dr.

Rudolph Cejas, who examined Godwin while he was incarcerated, did

not prove that Godwin's knee injury had sufficiently healed so

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that he could return to his pre-injury employment.   In so ruling,

the commission made the following findings:
          On July 19, 1996, Dr. Cejas evaluated Godwin
          for pain in the left ear, which was diagnosed
          as otitis externa. On August 29, 1996, a
          medical record entry was made by one of Dr.
          Cejas's assistants, that [Godwin] "[m]ay
          return to work v/o Dr. Cejas." Dr. Cejas
          again evaluated Godwin on September 4, 1996,
          for recurrent pain in the left ear. He
          diagnosed otitis media of the left ear,
          prescribed medication and opined that
          [Godwin] could "[r]eturn to work."

               . . . Dr. [Stephen] McCoy [, Godwin's
          treating orthopedist,] found [Godwin] totally
          disabled before his incarceration and has not
          examined him since. There is no evidence
          that Dr. Cejas evaluated [Godwin's] knee.
          The only medical records from Dr. Cejas
          relate to treatment for [Godwin's] left ear
          infection. Because Dr. Cejas does not
          mention [Godwin's] right knee injury in his
          notes, we cannot conclude that the work
          release related to [Godwin's] knee and not
          the condition for which he rendered
          treatment, complaints of left ear pain.

     "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 the

employer proved that Godwin's knee injury had sufficiently healed




                                  2
so that he could return to his pre-injury employment.    See Tomko

v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,

835 (1970).

     The commission articulated legitimate reasons for giving

little probative weight to Dr. Cejas' reports.   In light of Dr.

Cejas' diagnosis, which was limited to Godwin's ear problem, the

commission was entitled to conclude that Dr. Cejas' reports did

not relate to Godwin's knee injury.    No evidence in the record

proved that Godwin's knee injury had sufficiently healed so that

he could carry out all of the duties of his pre-injury

employment.
     Because the medical evidence was subject to the commission's

factual determination, see Hungerford Mechanical Corp. v. Hobson,

11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991), we cannot find

as a matter of law that the evidence proved that Godwin was

capable of returning to his pre-injury employment.   Accordingly,

we affirm the commission's decision.
                                                         Affirmed.




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