                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


GRAND PIANO & FURNITURE COMPANY, INC.
 AND CONTINENTAL INSURANCE COMPANY
                                                 MEMORANDUM OPINION *
v.   Record No. 0827-98-4                            PER CURIAM
                                                  SEPTEMBER 8, 1998
QUINTON FOGLE


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Jonathan S. Rochkind, on brief), for
           appellants.
           (Jimmy L. Hill; Roger Ritchie & Partners, on
           brief), for appellee.



     Grand Piano & Furniture Company and its insurer (hereinafter

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

Commission ("commission") erred in finding that employer failed

to prove that Quinton Fogle ("claimant") was capable of

performing his pre-injury work as of March 19, 1997.      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.     See 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:
           While Dr. [Patrick] Capone released the
           claimant to full duty, he also stated in his
           deposition that if this required the claimant
           to do heavy lifting of more than 30 or 40
           pounds, he would have difficulty with this.
           Dr. Capone also stated that he believed the
           claimant's complaints were legitimate, and
           that the claimant suffers from
           post-concussive syndrome. Dr. Capone noted
           that he deferred to Dr. [T.J.] Schulz for an
           orthopaedic evaluation. We note that Dr.
           Schulz, who is also a treating physician,
           indicated on March 18, 1997, that the
           claimant was not released to return to work
           until seen again in five weeks. The
           diagnosis was a cervical, thoracic, and
           lumbar strain, and left shoulder pain. While
           the doctor's examination notes of that date
           may have focused on the left shoulder pain
           and carpal tunnel syndrome, neither of which
           are currently before the Commission, his
           disability slip did not limit the disability
           to these concerns. In view of Dr. Capone's
           questioning of the claimant's lifting
           capacity and Dr. Schulz's continuing
           disability, we cannot find that the employer
           has established the claimant's ability to
           return to pre-injury work.


     The commission's findings are amply supported by the record.

The commission articulated legitimate reasons for giving little


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probative weight to Dr. Capone's March 18, 1997 work-release.     In

light of these reasons, the commission was entitled to conclude

that Dr. Capone's medical reports and 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).
     Because the weight accorded to 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 March 19,

1997, claimant was capable of returning to his pre-injury

employment.   Accordingly, we affirm the commission's decision.

                                                        Affirmed.




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