                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


BLAKE CONSTRUCTION COMPANY, INC.
AND
STANDARD FIRE INSURANCE COMPANY
                                               MEMORANDUM OPINION *
v.   Record No. 1497-95-4                          PER CURIAM
                                                DECEMBER 5, 1995
HENRY YOUNG


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
              (Alan D. Sundburg; Friedlander, Misler, Friedlander,
              Sloan & Herz, on brief), for appellants.

              (Lawrence J. Pascal; Ashcraft & Gerel, on brief), for
              appellee.



     Blake Construction Company, Inc. and its insurer

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

the Workers' Compensation Commission erred in denying its change

in condition application.    The commission found that employer

failed to prove that Henry Young ("claimant") was able to perform

light-duty or sedentary work as of July 25, 1994.    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.
     On appellate review, we view the evidence in the light most

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

v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

"General principles of workman's compensation law provide that
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
'[i]n an application for review of an 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.    Tomko

v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,

835 (1970).

     In denying employer's change in condition application and in

finding that employer failed to prove that claimant was able to

perform light-duty work, the commission found as follows:
               The only medical release to work was
          issued by Dr. [Richard J.] Sternberg, who
          imposed significant limitations and
          ultimately deferred to the treating
          physician, Dr. [Robert T.] Gaughan, regarding
          the claimant's weight bearing status. Dr.
          Gaughan's reports are silent on the issue of
          work capacity. Dr. [L.J.] Wagner's report
          indicates the claimant was not assigned to
          work upon arrival at the Allenwood facility
          due to medical problems. He concluded that
          continuing the status of "medically
          unassigned" is appropriate, observing
          residual problems related to the fracture,
          including migration of the screws and
          possible disfiguration.


                 *    *    *    *    *    *    *
               The employer had the burden to prove
          that the claimant was partially disabled.
          The claimant's treating physician, Dr.
          Gaughan, has not reported the claimant was


                                  2
            able to perform light duty. Dr. Sternberg
            thought the claimant could perform some
            sedentary work but deferred to Dr. Gaughan's
            opinion. Dr. Wagner's statement is
            ambiguous.


     The commission's findings are supported by the medical

records.    Therefore, we are bound by these findings.   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. Brooks, 12 Va. App.

890, 894, 407 S.E.2d 32, 35 (1991).
     Based upon the lack of a release from Dr. Gaughan, the

treating physician, for claimant to return to work, and the

ambiguous opinions rendered by Drs. Sternberg and Wagner, we

cannot say 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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