                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Frank, Clements and Senior Judge Bray


CHEVY CHASE BANK F S B AND
 VIGILANT INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 2538-02-4                         PER CURIAM
                                              FEBRUARY 25, 2003
DONALD M. JOHNSON


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Robert C. Baker, Jr.; Dobbs & Baker, on
             brief), for appellants.

             (Alan C. Siciliano; DeCaro, Doran, Siciliano,
             Gallagher & DeBlasis, LLP, on brief), for
             appellee.


     Chevy Chase Bank F S B and its insurer (hereinafter

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

Commission erred in finding that employer failed to prove that

Donald M. Johnson (claimant) was able to return to his

pre-injury work as of July 13, 2001.     Upon reviewing the record

and the parties' briefs, 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 'in an application for review of any award on the ground of

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


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 proving that

claimant was able to perform all of the duties of his pre-injury

employment, the commission's findings are binding and conclusive

upon us.   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. [Sheldon] Margulies opined in July 2001
           that the claimant was capable of part-time
           work but that he could not perform all of
           the duties of his full time pre-injury
           employment. Dr. Margulies has treated the
           claimant since August 2000, and we defer to
           that doctor's opinions regarding the
           claimant's work status. Although
           Dr. [Melissa] Neiman opined that the
           claimant could perform all of his pre-injury
           work duties on a full time basis, Dr. Neiman
           concurred in the opinion that the claimant
           suffered from post-traumatic headache
           syndrome.

                We have not overlooked the videotapes.
           These videotapes show the claimant
           performing on stage on three different
           occasions over a one and a half year period.
           However, it does not appear that the
           videotapes were shown to Dr. Margulies. The
           Deputy Commissioner, who observed the videos
           and observed the claimant at the hearing,
           held that the videotapes were less
           sufficient than the treating physician's
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          opinion regarding the claimant's work
          status. The record is not sufficient to
          overcome this determination.

     Dr. Margulies's medical records and opinions amply support

the commission's findings.   As fact finder, the commission was

entitled to weigh the medical evidence, to accept

Dr. Margulies's opinion, to reject Dr. Neiman's contrary

opinion, and to give little probative weight to the videotapes.

It is well settled that credibility determinations are within

the fact finder's exclusive purview.    Goodyear Tire & Rubber Co.

v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).

Moreover, "[q]uestions raised by conflicting medical opinions

must be decided by the commission."    Penley v. Island Creek Coal

Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).

     In light of Dr. Margulies's opinion and the commission's

credibility determination, we cannot find 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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