                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


B E & K CONSTRUCTION COMPANY AND
 ST. PAUL FIRE AND MARINE
 INSURANCE COMPANY
                                               MEMORANDUM OPINION *
v.   Record No. 2575-96-3                          PER CURIAM
                                                FEBRUARY 25, 1997
MAYNARD WINTON PERRY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (Jonnie L. Speight; Johnson, Ayers &
           Matthews, on brief), for appellants.

           (William T. Wilson; Nolan R. Nicely, Jr.;
           Wilson & Updike, on brief), for appellee.



     B E & K Construction Company and its insurer (hereinafter

collectively referred to as "employer") contend that the Workers'

Compensation Commission erred in finding that employer failed to

prove that as of October 25, 1995 Maynard Winton Perry was no

longer disabled from his pre-injury work.   Upon reviewing the

record and the briefs of the parties, 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 '[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 allegation by a preponderance of the

evidence.'"   Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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)). 1   Furthermore, "it is fundamental that a finding of

fact made by the Commission is conclusive and binding upon this

court on review.    A question raised by conflicting medical

opinion is a question of fact."    Commonwealth v. Powell, 2 Va.

App. 712, 714, 347 S.E.2d 532, 533 (1986).    "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, 214 (1991).

     On appellate review, we construe the evidence in the light

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

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

(1990).   Based on evidence in the record, the commission found

that Perry could not perform his pre-injury job.    The opinions of

the treating physicians, Dr. Weidman, an orthopedist, and Dr.

Harry Kornhiser, a psychiatrist, support this finding.    The

commission, in its role as fact finder, was entitled to accept
     1
      Employer argues in its brief that because evidence showed
that Dr. Clare Weidman released Perry to light work as of January
18, 1994, Perry bore the burden of proving he marketed his
residual capacity after that date. Employer asserts that Perry
did not present any evidence of marketing efforts, and,
therefore, employer should have prevailed on its application.
However, this case was before the commission on employer's
application alleging that Perry was no longer disabled due to his
industrial injury and that he could return to his pre-injury
work. With respect to the issue before the commission, Perry was
not required to prove he marketed his residual capacity. Rather,
employer bore the burden of proving Perry could return to his
pre-injury work without restrictions.




                                - 2 -
the opinions of Drs. Weidman and Kornhiser and to reject the

contrary opinions of the independent medical examiners.     Dr.

Murray E. Joiner, Jr. and Dr. Robert Brown, the independent

medical examiners, each examined Perry on only one occasion.

Because Drs. Weidman and Kornhiser were treating physicians, the

commission was justified in giving their opinions greater weight.

 See Reeves, 1 Va. App. at 439, 339 S.E.2d at 572.

     Employer argues that the content of surveillance videotapes

of Perry and Perry's misrepresentations to his treating

physicians required that the commission reject the opinions of

Drs. Weidman and Kornhiser.   However, the treating physicians

reviewed the surveillance videotapes of Perry and weighed any

effect the videotapes might have upon their opinions.     The

content of the videotapes did not change the opinions of the

treating physicians.
     In addition, the commission reviewed the videotapes and

found "that the activities shown do not duplicate the

requirements of the claimant's pre-injury job, which involves

extensive overhead labor."    This finding is supported by the

record.   In addition to viewing the videotapes, the commission

took into account in rendering its decision, the fact that Perry

had not been particularly forthright with his physicians.       On

appeal this Court "does not retry the facts, reweigh the

preponderance of the evidence, or make its own determination of

the credibility of the witnesses."      Wagner Enters., Inc. v.




                                - 3 -
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).   The

commission's resolution of those factual issues is binding on

this Court.   Powell, 2 Va. App. at 714, 347 S.E.2d at 533.

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

                                              Affirmed.




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