                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bumgardner and Humphreys


JOHN W. DANIEL AND COMPANY, INC. AND
 WCAMC CONTRACTORS GROUP
 SELF-INSURANCE ASSOCIATION
                                             MEMORANDUM OPINION*
v.   Record No. 0412-00-3                         PER CURIAM
                                               AUGUST 22, 2000
JOSEPH E. DENT


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Paul C. Kuhnel; Wooten & Hart, P.C., on
             brief), for appellants.

             No brief for appellee.


     John W. Daniel and Company, Inc. and its insurer

(hereinafter referred to as "employer") contend that the

Workers' Compensation Commission erred in denying its

change-in-condition application by finding that employer failed

to prove that Joseph Dent's (claimant) continuing disability

after September 21, 1998 was not related to his compensable

March 19, 1997 back injury.     Upon reviewing the record and the

brief of the employer, we conclude that this appeal is without

merit.     Accordingly, we summarily affirm the commission's

decision.     See Rule 5A:27.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     "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)).   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 denying employer's application, the commission found as

follows:

                Dr. [Lawrence F.] Cohen has been
           treating the claimant for a back condition.
           None of his reports opine that the back has
           healed or that the current symptoms were
           caused exclusively by the stumble in
           September 1998 or the exacerbation in
           November 1998. Instead, the medical record
           merely reflects that the claimant's symptoms
           had diminished and that he was capable of
           returning to light duty. For example, on
           March 9, 1998, he reported minimal pain and
           occasional symptomatology. At that time,
           the claimant was released to light work with
           restrictions. . . . By August 26, 1998,
           . . . Dr. Cohen proposed light duty for an
           additional six months.

                Significantly, Dr. Cohen repeatedly
           labeled the claimant's problems as an
           exacerbation without opining that the
           underlying injury had resolved. For
           example, on September 24, 1998, he noted
           painful lumbar spine range of motion

                               - 2 -
          radiating into the right lower leg. Dr.
          Cohen thought a scan should be taken "to see
          if he has a herniated disc at L4-5 on the rt
          side which is possible since it is in the
          nature of his injury. . . ." He did not
          distinguish to which injury this
          referred. . . . [Dr. Cohen] advised on
          December 31, 1998, that although the
          claimant "was doing relatively well . . ."
          after the fusion, he "still [was] having
          some symptoms. . . ." Moreover, Dr. Cohen
          testified that something triggered the right
          leg pain, which could have been a nerve root
          or referred pain from the L5-S1 level.

          . . . [T]he medical record does not indicate
          that claimant would have been released to
          full duty, except for the two incidents.
          Instead, it shows that he was capable of
          light duty. Dr. Cohen never stated that the
          claimant was completely healed or able to
          return to his preinjury employment.
          Further, he testified that he could not
          state whether the current symptoms were
          caused entirely by the two incidents.

     The commission's findings are supported by Dr. Cohen's

medical records and his deposition testimony.   Based upon that

evidence, the commission, as fact finder, could reasonably

conclude that "[t]he evidence fails to show that the claimant's

condition is not related to the compensable injury."   "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).




                              - 3 -
     Based upon this record, we cannot find as a matter of law

that employer's evidence sustained its burden of proof.

Accordingly, we affirm the commission's decision.

                                                          Affirmed.




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