                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


JANIE ELIZABETH HOLMAN
                                              MEMORANDUM OPINION *
v.   Record No. 0028-97-3                         PER CURIAM
                                                 MAY 27, 1997
SOUTHWESTERN VIRGINIA
 MENTAL HEALTH INSTITUTE


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Lawrence L. Moise, III; Vinyard & Moise, on
           brief), for appellant.
           (James S. Gilmore, III, Attorney General;
           James W. Osborne, Assistant Attorney General,
           on brief), for appellee.



     Janie Holman (claimant) contends that the Workers'

Compensation Commission (commission) erred in finding that

(1) she failed to prove she remained totally disabled as a result

of her compensable August 1, 1990 injury by accident; and (2) she

failed to prove that she marketed her residual capacity.      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.   See 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

claimant's evidence sustained her burden of proof, 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 claimant's change in condition application and

finding that her evidence failed to establish that she could not

return to any form of employment, the commission found as

follows:
                Dr. [Neal A.] Jewell, who has treated
           the claimant since 1991, has indicated that
           she can return to some form of employment,
           albeit not her preinjury work. We are not
           persuaded by Dr. [William E.] Kennedy's
           opinion, nor that of his referral, Dr.
           [Norman E.] Hankins. The general rule is
           that, when an attending physician is positive
           in his diagnosis, great weight will be given
           by the courts to his opinion. Pilot Freight
           Carriers, Inc. v. Reeves, 1 Va. App. 435, 339
           S.E.2d 570 (1986). Additionally, Drs.
           Kennedy and Hankins base their opinions on
             x-rays taken in 1994, instead of more
           recent studies. Based on Dr. Jewell's
           opinion, we find that the claimant has
           residual capacity. As she has failed to
           market this capacity, she is not entitled to
           benefits.


     The commission's findings are supported by Dr. Jewell's




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medical records and opinions.   As fact finder, the commission was

entitled to accept Dr. Jewell's opinions and to reject the

contrary opinions of Drs. Kennedy and Hankins.   "Questions 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).   We find no merit in claimant's

argument that the commission was required to accept Dr. Hankins'

opinion because he was the sole vocational expert.   Nothing in

the record indicates that Dr. Jewell was not qualified to render

an opinion regarding claimant's ability to work.
     Based upon this record, we cannot say as a matter of law

that claimant's evidence sustained her burden of proof.

Accordingly, we affirm the commission's decision.

                                                          Affirmed.




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