                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


RICK EUGENE DUDLEY

v.   Record No. 1814-96-2                        MEMORANDUM OPINION *
                                                     PER CURIAM
PARAMOUNT'S KINGS DOMINION                         JANUARY 7, 1997
AND
AETNA CASUALTY AND SURETY COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (Rick Eugene Dudley, pro se, on brief).

           (F. Brawner Greer; McGuire, Woods, Battle &
           Boothe, on brief), for appellees.



     Rick Eugene Dudley ("claimant") contends that the Workers'

Compensation Commission ("commission") erred in denying his

application alleging a change in condition and seeking temporary

total disability benefits commencing December 27, 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 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

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

     *
      Pursuant to Code § 17-116.010 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

claimant'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).
     In holding that claimant's evidence did not establish that

his regular employment duties required lifting in excess of

twenty-five pounds, the commission found as follows:
          The burden is upon [claimant] to establish
          that his duties exceed this restriction, and
          there is nothing in the record in that
          regard. The claimant did testify that he
          engaged in other activities from time to time
          on behalf of his employer, but it is not
          clear from the record whether these were
          duties which were expected or required of
          him. The record is clear that he was injured
          while lifting a section of flooring,
          apparently part of a stage, that weighed more
          than 25 pounds, but again we cannot determine
          if such work was a part of his employment
          duties, as opposed to work which he did
          voluntarily.


     It was undisputed that claimant's physicians released him to

perform work, which did not require lifting in excess of

twenty-five pounds.   No evidence established that the regular

duties of claimant's pre-injury job as a guitar player required

that he lift objects weighing more than twenty-five pounds.



                                  2
Although claimant testified that on two occasions he lifted

objects weighing more than twenty-five pounds while working for

employer, no evidence established that these tasks were a

required and expected part of his job as a musician.   In short,

claimant never testified regarding the specific duties required

of him in the musician job nor did he present any other evidence

to establish those duties.   Accordingly, the commission was

entitled to conclude that claimant's regular employment as a

guitar player did not require lifting in excess of twenty-five

pounds.   Based upon this record, we cannot say as a matter of law

that claimant's evidence sustained his burden of proving that he

could not perform the duties of his pre-injury employment. 1

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

                                                   Affirmed.




     1
      In rendering our decision, we did not consider evidence
submitted by claimant with his brief, which was not properly
before the commission when it rendered its decision.



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