                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia


ISLAND CREEK COAL COMPANY
                                           MEMORANDUM OPINION* BY
v.   Record No. 1920-00-3                 JUDGE ROBERT J. HUMPHREYS
                                               MARCH 20, 2001
JAMES E. ADKINS


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Lisa Frisina Clement (Michael F. Blair; Penn,
          Stuart & Eskridge, P.C., on brief), for
          appellant.

          D. Edward Wise, Jr. (Arrington, Schelin &
          Herrell, P.C., on brief), for appellee.


     Island Creek Coal Company appeals a decision of the

Virginia Workers' Compensation Commission denying its

application to terminate temporary total disability benefits

paid to James E. Adkins.    Island Creek argues that the

commission erred in determining that it had failed to sustain

its burden of proof to support the application for termination

of benefits.

     "Following established principles, we review the evidence

in the light most favorable to the prevailing party."      R.G.

Moore Building Corp. v. Mullins, 10 Va. App. 211, 212, 390

S.E.2d 788, 788 (1990).     If credible evidence supports the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
commission's factual finding, we are required to uphold that

finding on review.     See Classic Floors, Inc. v. Guy, 9 Va. App.

90, 95, 383 S.E.2d 761, 764 (1989).

        So viewed, the evidence presented at the hearing

established that Adkins, who had been an Island Creek employee

for approximately 22 years, sustained an injury to his ankle

which arose out of and in the course of his employment on

October 7, 1997.    At that time, Adkins was employed as a

motorman in the VP #3 mine.

        Adkins was taken to Buchanan General Hospital immediately

after he sustained the injury, where he was diagnosed with a

fracture of his right fibula and placed in an ankle brace.    On

October 9, 1997, Adkins was sent to Dr. Thomas Kramer, an

orthopedist.    Dr. Kramer placed Adkins' injured leg in a short

leg fiberglass cast and advised Adkins "it [was] probably going

to be somewhere in the neighborhood of eight to twelve weeks

before [Adkins] . . . [would] be able to return to his usual and

customary occupation or longer . . . ."

        Shortly thereafter, Island Creek accepted Adkins' claim as

compensable, and the parties executed a memorandum of agreement.

The commission entered an award on January 22, 1998, granting

Adkins temporary total disability benefits beginning October 8,

1997.

        For the next several months, Adkins continued to receive

treatment for his injury, but did not progress as expected.    On

                                 - 2 -
August 23, 1999, Dr. William McIlwain, one of Adkins' treating

physicians, reported that Adkins had reached maximum medical

improvement and was capable of light to moderate duty work, but

should avoid prolonged squatting, as well as stairs and

climbing.      He gave Adkins an impairment rating of 15% to his

right leg and 21% to his right foot.

        Dr. McIlwain examined Adkins again on September 15, 1999,

and reported that "Adkins [had] an excellent exam.      He . . .

complain[ed] of tenderness subjectively but his wound [had]

healed very nicely."      Dr. McIlwain then advised Adkins that he

had "objectively" recovered "to his pre-injury state" and that

if his job were available, he had recovered to the point that he

could return to work. 1

        Based on Dr. McIlwain's September 15, 1999 report, Island

Creek filed an application to suspend benefits, alleging that

Adkins' physician had released him to return to his pre-injury

work.       During a pre-hearing deposition, Adkins denied that

Dr. McIlwain had released him to return to work and indicated

that because of his heart and leg, he would be unable to return

to his pre-injury work. 2     Adkins described his duties as a


        1
       Apparently, the VP #3 mine had shut down by that time, and
Adkins had been laid off.
        2
       In April of 1998, Adkins suffered from a myocardial
infarction and has since been treating with a cardiologist.
However, other than its apparent effect in slowing Adkins'
recovery, his heart condition is not an issue on appeal.


                                   - 3 -
motorman as requiring him to load and unload supply trucks which

came into various areas of the mines.    To do this, Adkins was

required to perform "quite a bit" of walking "up and down," to

walk "stooped over" in some places, to bend, to lift "all sorts

of things" such as steel, crib blocks, cement, mortar mix and

other supplies, and to operate "scoops" by foot controls.

        Shortly after the deposition, Adkins underwent an

independent medical examination, at the request of Island Creek,

which was performed by Dr. William E. Kennedy.    Dr. Kennedy

stated that there was a "very good correlation" between his

objective findings with respect to Adkins' ankle and his

complaints of continued ankle pain, weakness and loss of motion.

He gave Adkins a permanent partial impairment rating of his

right lower leg of 11%, and advised Adkins to avoid excessive

stair climbing, ladder climbing, kneeling, squatting, crawling,

or working over rough terrain, or slippery or sloping surfaces,

in his future activities of daily living and employment.

        Subsequently, Island Creek sent a job description for the

position of motorman and Adkins' deposition transcript to

Dr. McIlwain, and asked him to provide an opinion as to whether

Adkins could perform the duties described.    Dr. McIlwain

responded by letter on December 7, 1999, stating in relevant

part:

             I have reviewed the deposition of Mr. James
             Adkins . . . regarding his job description.
             I have also reviewed the job description

                                 - 4 -
           that was sent to me by the employer via
           Employers Service Corporation.

            *      *      *      *      *      *        *

           I have compared that testimony to the job
           description sent to me by Employers Service
           and my evaluation of September 15, 1999
           which demonstrates the patient had an
           excellent examination.

            *      *      *      *      *      *        *

           It is still my contention and my opinion
           that Mr. Adkins can, in fact, do the job
           description that I have been supplied.

The actual job description provided to Dr. McIlwain was never

submitted to the commission and is not part of the record on

appeal.

     During the hearing, Adkins again denied that McIlwain had

released him to return to work and maintained that he could not

perform his pre-injury job due to his ankle problems.

Specifically, he testified that he could not climb stairs, as

required about every 90 days, bend, squat and kneel, which was

required "quite a bit," and could not walk on the "up and down,

rough" surfaces of the mine, which were often slippery and

sloped.   A former Assistant Mine Superintendent confirmed that

Adkins' description of the job was relatively accurate and

confirmed that kneeling and squatting were required, although

infrequently, and that the floor surface of the mine was uneven,

wet, and slippery in places.




                               - 5 -
     Based on this evidence, Deputy Commissioner Stevick granted

Island Creek's application.   However, on review of the deputy

commissioner's decision, the full commission reversed, finding

that Island Creek had failed to meet its burden in support of

the application.   The full commission noted that there was no

evidence of a change in Adkins' physical condition between the

August 23, 1999 report prepared by Dr. McIlwain and the

September 15, 1999 report, and gave greater weight to the August

23 report, concluding that Dr. McIlwain's findings in the August

23 report were similar to the findings made by Dr. Kennedy.

Accordingly, the commission held that Island Creek had failed to

meet its burden in establishing that Adkins could kneel, crawl,

squat, lift, and walk on the uneven surfaces as the job

required.

     The commission gave little weight to Dr. McIlwain's letter

concerning the job description stating:

            [W]hile recognizing that Dr. McIlwain is
            [Adkins'] treating physician, we do not
            accord great weight to his opinion on this
            issue. In his report of December 1999, he
            expressly stated, after reviewing both
            [Adkins'] deposition and the job description
            provided by the employer, that [Adkins]
            could perform the duties reflected in the
            job description he was provided. He offered
            no opinion as to whether [Adkins] was
            capable of performing his pre-injury job
            duties as reflected in his deposition
            testimony.

     On appeal, Island Creek contends that the commission erred

in giving greater weight to the medical opinion of Dr. Kennedy,

                                - 6 -
because Dr. McIlwain was Adkins' treating physician.   Island

Creek also argues that the commission erred in disregarding the

letter from Dr. McIlwain concerning the employer's job

description and Adkins' deposition testimony.

     "General principles of workman's compensation law provide

that in an application for review of an award on the ground of

change in condition, the burden is on the party alleging such

condition to prove his allegation 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) (citation omitted).   Thus,

it was the burden of Island Creek to prove, by a preponderance

of the evidence, that Adkins was "able to carry out all of the

duties of his pre-injury employment . . . ."    Crystal Oil Co. v.

Dotson, 12 Va. App. 1014, 1021, 408 S.E.2d 252, 256 (1991)

(emphasis added).   "The commission has held that, in determining

whether an injured employee can return to his or her pre-injury

employment duties the commission does not look at how the duties

could ideally be performed, but rather, how the duties were

actually performed."   Clinchfield Coal Co. v. Parrott, 22 Va.

App. 443, 446-47, 470 S.E.2d 597, 598-99 (1996) (citation

omitted) (emphasis in original).

     To meet this burden, Island Creek presented Dr. McIlwain's

September 15, 1999 examination report, as well as his December

1999 opinion letter, stating that Adkins was capable of

returning to his pre-injury work.   Conversely, Adkins relied

                               - 7 -
upon his deposition testimony describing the nature of his

duties, as well as Dr. Kennedy's opinion of November 15, 1999,

concluding that Adkins could not perform all of the duties

required by his pre-injury position.

     "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).    In its role as fact finder, "[t]he

probative weight to be accorded [medical] evidence is for the

Commission to decide," and if a portion of the medical evidence

"is in conflict with other medical evidence, the Commission is

free to adopt that view which is most consistent with reason and

justice."     Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5,

526 S.E.2d 267, 269 (2000) (citation omitted).    Nevertheless,

"great weight should be given to the evidence of an attending

physician."     Bassett Burkeville Veneer v. Slaughter, 21 Va. App.

575, 580, 466 S.E.2d 127, 129 (1996) (citing C.D.S. Constr.

Servs. v. Petrock, 218 Va. 1064, 1071, 243 S.E.2d 236, 241

(1978)).

     In reversing the decision of the deputy commissioner, the

full commission relied heavily upon the opinion of Dr. Kennedy

and refused to lend "great weight" to the opinion of

Dr. McIlwain, based on its conclusion that Dr. McIlwain failed

to consider the job duties described by Adkins in his

deposition, in conjunction with those set forth in the job

                                 - 8 -
description provided to him by the employer.    However, the

commission was incorrect in concluding that Dr. McIlwain failed

to consider Adkins' deposition testimony.   In fact, Dr. McIlwain

clearly stated that he considered both the job duties set forth

in the deposition testimony, as well as the duties described in

the job description.

     Thus, the commission failed to articulate credible reasons

for giving little probative weight to the opinions of

Dr. McIlwain.   Furthermore, based on this record, we cannot

determine whether, without this factual error, the commission

would have relied as heavily upon Dr. Kennedy's testimony versus

that of Dr. McIlwain, Adkins' treating physician.

     Accordingly, we reverse the decision of the commission and

remand the matter with direction to the commission to reconsider

the merits, while lending the appropriate probative weight to

Dr. McIlwain's opinion of December 7, 1999.

                                              Reversed and remanded.




                               - 9 -
