                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Bumgardner


BAKER ROOFING COMPANY
 AND TRANSPORTATION INSURANCE COMPANY
                                                MEMORANDUM OPINION *
v.   Record No. 2786-97-1                           PER CURIAM
                                                  MARCH 31, 1998
LARRY MASON


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Roya Palmer Ewing, on brief), for
           appellants. Appellants submitting on brief.
           No brief for appellee.



     Baker Roofing Company and its insurer (hereinafter referred

to as "employer") appeal a decision of the Workers' Compensation

Commission ("commission") denying employer's application alleging

a change-in-condition.    Employer contends that the commission

erred in finding that it failed to prove that Larry Mason

("claimant") was released to return to his pre-injury employment

as of February 1, 1997.   Finding no error, we affirm the

commission's decision.

     "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
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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

employer proved that claimant was fully able to perform the

duties of his pre-injury employment.   See Tomko v. Michael's

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     In denying employer's application due to the ambiguities in

the opinions of the treating neurosurgeon, Dr. Edward B. Butts,

the commission found as follows:
          If it is assumed that Dr. Butts meant to
          release the claimant on February 1, the
          release is sufficiently current to be valid,
          but he never stated when, in the month of
          February, the claimant was released. If, for
          example, he intended to release him in the
          middle of the month, the release would be
          prospective and not sufficiently current to
          sustain the employer's application.
          Unfortunately, the lack of clarification
          places us in the position of being asked to
          assume Dr. Butts' intention, which we are
          reluctant to do.
               The second problem is that Dr. Butts
          reported on May 16, 1997, that the claimant
          was to undergo a myelogram on May 19, 1997,
          because of "continued pain." In a disability
          certificate of May 19, 1997, he stated: "Pt.
          had myelogram today which showed herniated
          disc L3-4 and will need surgery. He is
          unable to work at this time." Again, Dr.
          Butts' intention is not clear. The language
          of the disability certificate may mean that
          his opinion is that the claimant was not
          disabled between February and May 19, 1997.
          On the other hand, Dr. Butts reported
          continuing pain, followed by a new finding of
          a herniated disc at L3-4 which he may or may
          not relate to the accident. These findings
          and complaints raise a serious question as to
          whether Dr. Butts would still be of the
          opinion that the claimant could work as a
          roofer between February and May 19, 1997.


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             Again, we are left to assume his intentions,
             which we decline to do.


     The commission articulated legitimate reasons for giving

little probative weight to Dr. Butts' opinions.    In light of

these reasons, the commission was entitled to conclude that Dr.

Butts' opinions did not constitute sufficient evidence to prove

that claimant was capable of carrying out all of the duties of

his pre-injury employment.    "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).    Moreover, the commission

did not err in considering Dr. Butts' May 16, 1997 medical report

and his May 19, 1997 disability certificate.    Those medical

reports were properly before the commission and were relevant to

its determination of whether claimant had been released to return

to his pre-injury employment.

     Because the medical evidence was subject to the commission's

factual determination, we cannot find as a matter of law that the

evidence proved that as of February 1, 1997, claimant was capable

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

affirm the commission's decision.
                                                            Affirmed.




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