                       COURT OF APPEALS OF VIRGINIA

Present:      Judges Bray, Annunziata and Overton


A & K SERVICE CORPORATION
AND
EMPLOYERS INSURANCE OF WAUSAU
                                                    MEMORANDUM OPINION *
v.      Record No. 1410-97-2                            PER CURIAM
                                                     NOVEMBER 10, 1997
ROBERT D. VANDYKE


            FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

               (Deborah S. O'Toole; Cowan & Owen, P.C., on
               brief), for appellants.
               (Laura A. McDonald; Geoffrey R. McDonald,
               P.C., on brief), for appellee.



        A & K Service Corporation and its insurer (hereinafter

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

Commission erred in finding that employer failed to prove that

Robert D. VanDyke (claimant) was released to return to his

pre-injury employment without restrictions as of September 27,

1996.       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 allegations 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)).    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, the commission found as

follows:
             Dr. [Ralph E.] Hagan indicated that the
             claimant could return to work on April 1,
             1996, but with the assistance of a helper,
             i.e., a conditional release to "work." He
             has not specifically indicated a return to
             full-duty work. The burden of proof lies
             with the moving party, the employer in this
             case, and they have failed to meet their
             burden. Dr. [Walter N.] Rabhan's report of
             September 27, 1996, also fails to meet the
             employer's burden of proof. We do not rely
             on his one-time examination, some 11 months
             after the injury.


     The commission articulated legitimate reasons for giving

little probative weight to Dr. Hagan's conditional work-release

and for rejecting the opinion of Dr. Rabhan.    In light of these

reasons, the commission was entitled to conclude that those

medical reports 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.




                                   2
675, 677, 401 S.E.2d 213, 215 (1991).

     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 September 27, 1996, claimant was

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

we affirm the commission's decision.

                                                        Affirmed.




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