                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


CROWDER CONSTRUCTION COMPANY
AND
LIBERTY MUTUAL INSURANCE COMPANY
                                                MEMORANDUM OPINION *
v.   Record No. 1779-97-1                           PER CURIAM
                                                 DECEMBER 9, 1997
WAYNE E. ELLIS


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            (R. Ferrell Newman; Thompson, Smithers,
            Newman & Wade, on brief), for appellants.

            (Randolph A. Raines, Jr.; Ferguson, Rawls,
            MacDonald, Overton & Grissom, on brief), for
            appellee.



     Crowder Construction Company and its insurer (hereinafter

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

Commission erred in denying its application alleging a

change-in-condition on the ground that employer failed to prove

that Wayne E. Ellis' current pulmonary symptoms were no longer

causally related to his compensable August 30, 1996 injury by

accident.   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 party prevailing below.     See R.G. Moore Bldg. Corp. v.

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

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:
          [E]mployer has not proven that [Ellis] has
          recovered from the effects of his toxic
          exposure and returned to his pre-injury
          state. [Ellis'] treating internist,
          Dr. [G. Wyatt] Webb, did not release him to
          return to work when he saw [Ellis] on October
          17, 1996. Dr. [F.D.] Elias stated that much
          of the disease was present before the injury,
          but the injury has exacerbated his
          pre-existing disease. Even Dr. [Scott] Irby
          answered "yes" and "no" to the question
          whether the current complaints of shortness
          of breath and weakness are related to the
          injury. Although both Dr. Irby and Dr. Elias
          note that the mass caused by the inhalation
          injury has resolved, this does not indicate
          that the current symptoms are unrelated to
          the injury or that [Ellis] has returned to
          his pre-injury state. The employer is
          responsible for an injury which aggravates or
          accelerates a pre-existing condition.



                                  2
     Employer relied upon the opinions of Dr. Irby.   However, as

the commission correctly noted, although Dr. Irby opined on

November 6, 1996 that Ellis' current treatment was related to his

chronic lung condition, Dr. Irby also opined that Ellis' current

complaints of shortness of breath and weakness were, at least in

part, causally related to his compensable injury by accident.

Based upon Dr. Irby's conflicting statements, the commission was

entitled to give little weight to his opinions.   "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).   Absent Dr. Irby's opinion, there is no persuasive

medical evidence that claimant's symptoms were no longer causally

related to the compensable aggravation of his pre-existing

chronic obstructive pulmonary disease.   Accordingly, we cannot

say that employer's evidence sustained its burden of proof as a

matter of law.

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




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