                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


RALPH WELDON WARD, JR.

v.   Record No. 1430-96-1                      MEMORANDUM OPINION *
                                                   PER CURIAM
TIDEWATER SAND COMPANY                          NOVEMBER 26, 1996
AND
AMERICAN INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (Ralph Ward, Jr., pro se, on brief).

           (Joseph C. Veith, III; Montedonico, Hamilton &
           Altman, on brief), for appellees.



     Ralph Weldon Ward, Jr. contends that the Workers'

Compensation Commission erred in finding that he failed to prove

that (1) he was totally disabled from any gainful employment

after March 7, 1995; and (2) he made a good faith effort to

market his residual capacity after March 7, 1995.    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 appeal, 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

'[i]n an application for review of any award on the ground of

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

evidence sustained his 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).

                                 I.

     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).   Based upon Ward's inconsistent behavior and unresponsive

and evasive manner of answering employer's clearly formulated and

relevant questions during the hearing, the deputy commissioner

found Ward was not a credible witness.   The full commission

agreed with and adopted the deputy commissioner's credibility

determination.   Based upon this record, the commission, as fact

finder, was free to reject Ward's testimony concerning the extent

of his disability.   This Court will not substitute its judgment

for that of the trier of fact, which had the opportunity to

observe the witnesses and evaluate their credibility.       Id. at

382, 363 S.E.2d at 437.

     On March 7, 1995, Dr. Sidney S. Loxley, Ward's treating



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orthopedic surgeon, opined as follows:
          [Mr. Ward] remains significantly symptomatic.
           He has tried on several occasions to engage
          in various vocational activities but he is
          unfitted by training, education, or
          experience for anything except laboring type
          work. His back and lumbosacral nerve plexus
          do not tolerate laboring type activities.

                 *    *    *     *    *    *    *

          It is no longer possible for Mr. Ward to
          engage in laboring type activities or
          significant physical exertion. Therefore, I
          believe he is 100% disabled and merits a
          permanent physical impairment rating of 100%.

     The commission held that Dr. Loxley's opinion did not

establish that Ward was totally disabled from performing all

types of gainful employment.   In so ruling, the commission found

as follows:
               Dr. Loxley . . . asserted that [Ward] by
          virtue of his training, education and
          experience is unfit for anything but heavy
          labor. The Deputy Commissioner correctly
          noted that was an opinion that might be
          entertained from a vocational expert, but
          there is no evidence that it is one Dr.
          Loxley is qualified to render. We do not
          accept the physician's apparent presumptions
          that untrained and cognitively disadvantaged
          workers may be employed only as laborers,
          since such an opinion without evidentiary
          foundation is not within the medical
          expertise of the physician and flies in the
          face of human experience.
               The totality of the medical evidence
          shows that [Ward's] occupational back injury
          was aggravated by continuing work with the
          City of Chesapeake, which demonstrates that
          such work was unsuitable. However, the
          medical evidence also establishes that the
          claimant's symptoms improved with medication
          and avoidance of such work.




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     The commission's findings are supported by the medical

evidence, which "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).

     Based upon the commission's credibility determination and

the lack of medical evidence establishing that Ward's March 1989

compensable back injury prevented him from performing all types

of gainful employment, we cannot say as a matter of law that

Ward's evidence sustained his burden of proving total disability.

At best, Ward's evidence proved partial disability.
                                II.

     In order to establish entitlement to benefits, a partially

disabled employee must prove that he has made a reasonable effort

to procure suitable work but has been unable to do so.   Great

Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d

98, 101 (1987).   Because Ward stipulated before the commission

that he engaged in no marketing efforts after leaving his job

with the City of Chesapeake, we cannot find that the commission

erred in denying his claim for compensation benefits.

     For these reasons, we affirm the commission's decision.
                                                   Affirmed.




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