                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


HARRINGTON CORPORATION
AND
INSURANCE COMPANY OF NORTH AMERICA
                                               MEMORANDUM OPINION *
v.   Record No. 3088-96-3                          PER CURIAM
                                                  MAY 20, 1997
JESSE ARGENBRIGHT


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (Patricia C. Arrighi; Powell and Arrighi, on
           brief), for appellants.

           (Robert E. Evans; Evans Law Office, on
           brief), for appellee.



     Harrington Corporation and its insurer (hereinafter

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

Compensation Commission (commission) erred in finding that

employer failed to prove that Jesse Argenbright was released to

return to his pre-injury employment without restrictions as of

May 3, 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.

     The commission held that the letter reports of Dr. John

Jane, Argenbright's treating neurosurgeon, did not prove that

Argenbright was fully capable of carrying out all of the duties

of his pre-injury employment.   The commission found that, at
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
best, Dr. Jane's reports constituted a "trial release," which was

not the equivalent of an unconditional release to pre-injury

employment.    In so ruling, the commission made the following

findings:
            We find Dr. Jane's letter of May 3, 1996,
             to constitute insufficient proof of
            [Argenbright's] ability to return to
              pre-injury work. First, this letter is not
            based upon a contemporaneous examination of
            [Argenbright]. Secondly, the letter is
            inconsistent with the report of March 13,
            1996. The earlier report refers to an
            objective finding of scar tissue at the
            surgical site surrounding the L5 nerve root.
             The May 3, 1996, letter fails to mention
            this problem. Thirdly, the March 13, 1996,
            letter states that "we were really unable to
            ascertain his physical capabilities at this
            time." Dr. Jane fails to explain on May 3,
            1996, why, in the absence of any further
            examination or diagnostic studies, that he is
            able to conclude that [Argenbright's]
            physical capabilities are now ascertainable,
            and sufficient to allow a return to work.
            Finally, we are troubled by Dr. Jane's
            suggestion that [Argenbright's] only two
            choices are surgery, or a return to work.
            Dr. Jane fails to explain the apparent
            inconsistency between [Argenbright's] need
            for surgery and ability to return to work.

     "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.

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



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conclusive upon us, unless we can say as a matter of law that

employer proved that Argenbright was fully capable of returning

to his pre-injury employment.   See Tomko v. Michael's Plastering

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     The commission articulated legitimate reasons for giving

little probative weight to Dr. Jane's reports.   In light of these

reasons, the commission was entitled to conclude that Dr. Jane's

reports did not constitute sufficient evidence to prove that

Argenbright 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 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 May 3, 1996, Argenbright was capable

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

affirm the commission's decision.
                                                        Affirmed.




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