                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bumgardner and Lemons


WASHINGTON METROPOLITAN AREA
 TRANSIT AUTHORITY
                                             MEMORANDUM OPINION*
v.   Record No. 2337-99-4                         PER CURIAM
                                               FEBRUARY 8, 2000
BRENDA L. COOPER


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Robert C. Baker, Jr.; Mell, Brownell &
             Baker, on brief), for appellant.

             (Julie H. Heiden; Koonz, McKenney, Johnson,
             DePaolis & Lightfoot, on brief), for
             appellee.


     Washington Metropolitan Area Transit Authority (employer)

contends that the Workers' Compensation Commission (commission)

erred in finding that it failed to prove that Brenda L. Cooper

(claimant) was able to return to her pre-injury work as of

September 30, 1998.     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


     * Pursuant to Code § 17.1-413, recodifying 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 employer's

evidence sustained its 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 employer's change-in-condition application, the

commission found as follows:

           Although Dr. [Laura] Isensee agreed that
           most of [claimant's] complaints are
           subjective, she stated that she had found a
           decreased range of motion in the neck and
           shoulders, and has found the claimant to be
           tender to palpation over the cervical spine.
           She stated that on one occasion she observed
           an oblong area in the left mid to lower back
           region which "did not feel like a lipoma to
           me, but more like, what I describe, as
           'bunched-up' muscle."

                Dr. Isensee acknowledged that the
           claimant's pain complaint is what prevented
           her from being able to return to her
           pre-injury work as a bus driver. Although
           Dr. Isensee admitted that she relied upon
           the claimant's statements as to what she
           could or could not do, Dr. Isensee opined
           that the claimant's complaints are real,
           based upon Dr. Isensee's own observations
           regarding the pain. Dr. Isensee stated that
           she did not rely only upon the claimant's
           statements in deciding work capacity, but
           based that assessment on her own
           observations from having taken care of the
           claimant over an extended period. Dr.
           Isensee opined that claimant's pain

                               - 2 -
          complaints were causally related to the work
          accident, and that claimant had not yet
          reached maximum medical improvement. Dr.
          Isensee also noted that in November 1998,
          the claimant attempted unsuccessfully to
          return to work as a bus driver. Dr. Isensee
          feels that the claimant is presently capable
          of light-duty work, and opines that claimant
          is not a malingerer.

               . . . We find the opinions of Dr.
          Isensee persuasive, and find that the
          employer has failed to prove that claimant
          is capable of performing the duties of her
          pre-injury work as a bus driver.

     "Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing."

Hungerford Mechnical Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 214 (1991).   In its role as fact finder, the

commission was entitled to weigh the medical evidence.     The

commission did so and articulated legitimate reasons for

accepting the opinions of the treating neurologist, Dr. Isensee,

while rejecting the contrary opinions of independent medical

examiner, Dr. Kenneth W. Eckmann.   "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).

     Based upon Dr. Isensee's opinions, we cannot find as a

matter of law that employer sustained its burden of proving that

claimant was able to return to her pre-injury work as of




                               - 3 -
September 30, 1998.   Accordingly, we affirm the commission's

decision.

                                                        Affirmed.




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