                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia


WASHINGTON METROPOLITAN AREA
 TRANSIT AUTHORITY
                                          MEMORANDUM OPINION* BY
v.   Record No. 1125-01-4                 JUDGE NELSON T. OVERTON
                                              MARCH 19, 2002
KENNEDY TUAN LUONG


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

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

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


     Washington Metropolitan Area Transit Authority (employer)

appeals a decision of the Workers' Compensation Commission

awarding temporary partial disability benefits to Kennedy Tuan

Luong (claimant) beginning December 13, 1999.       Employer contends

the commission erred in finding (1) employer failed to prove

that claimant was capable of performing all of the duties of his

pre-injury work, without restrictions, as of December 13, 1999

based on its finding that claimant was restricted from working

overtime hours; and (2) Rule 1.2(B) of the Rules of the Virginia



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Workers' Compensation Commission did not limit claimant's June

13, 2000 claim seeking temporary partial disability benefits.

Finding no error, we affirm.

                                  I.

     "General principles of workman's compensation law provide

that 'in 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).

     On April 28, 1999, claimant sustained a compensable injury

by accident when he slipped and fell on a "running rail" while

working for employer.    Pursuant to a Memorandum of Agreement

executed by the parties on June 21, 1999, they agreed that

claimant suffered a head contusion, cervical strain, and scalp

laceration in the accident, while earning an average weekly wage

of $1,170.74.    Pursuant to the parties' agreement, on July 9,

1999, the commission entered an award for ongoing temporary



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total disability benefits at the statutory maximum rate of

$534 per week.

     On March 17, 2000, employer filed an application seeking

termination or suspension of claimant's outstanding award of

temporary total disability benefits.    In support of its

application, employer relied upon the December 6, 1999 report of

Dr. Lawrence E. Zarchin, claimant's treating physician, wherein

Dr. Zarchin released claimant to return to his pre-injury work

as of December 13, 1999.

     Claimant testified that when he returned to work on

December 13, 1999, he understood from his physician that he was

not to work more than forty hours per week.   Claimant stated

that employer did not allow him to sign up for overtime work

assignments because of this restriction.   Thus, claimant's

average weekly wage after his return to his pre-injury work was

$792.55 per week compared to the stipulated pre-injury average

weekly wage of $1,170.74.

     In March 2000, Dr. Zarchin, in response to a letter from

claimant's counsel, confirmed that the December 1999 release of

claimant did not include overtime work.    Dr. Zarchin

specifically noted that claimant "was limited to forty hours at

time of return to work."    Dr. Zarchin also causally related this

restriction to claimant's compensable April 28, 1999 injury by

accident.



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     Based upon claimant's testimony and Dr. Zarchin's medical

reports and opinions, the commission, as fact finder, was

entitled to conclude that claimant had not been "released to

fully unrestricted duties on December 13, 1999" and that he "was

under a medical restriction that prevented him from applying

for, or accepting work in excess of forty hours per week."    In

its role as fact finder, the commission was entitled to give

more probative weight to Dr. Zarchin's opinions than to the

opinions of Drs. Tran and Restak.

     Based upon this record, we cannot find as a matter of law

that employer's evidence sustained its burden of proving that

claimant had been released to perform all of the duties of his

pre-injury work as of December 13, 1999.

                               II.

     Employer contends the commission erred in finding that the

ninety-day rule contained in Rule 1.2(B) did not limit

claimant's June 13, 2000 claim for benefits seeking temporary

partial disability benefits beginning December 13, 1999 due to

his inability to work overtime hours.

          The commission has the power to make and
          enforce rules not inconsistent with the
          Workers' Compensation Act in order to carry
          out the provisions of the Act.
          Additionally, the commission has the power
          to interpret its own rules. When a
          challenge is made to the commission's
          construction of its rules, the appellate
          court's review is limited to a determination
          of whether the commission's interpretation
          was reasonable. The commission's

                              - 4 -
          interpretation will be accorded great
          deference and will not be set aside unless
          arbitrary or capricious.

Rusty's Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 129 n.2,

510 S.E.2d 255, 260 n.2 (1999) (en banc) (citations omitted).

     Rule 1.2(B), which governs employee's claims on the ground

of change in condition or other relief, provides in pertinent

part that "[a]dditional compensation may not be awarded more

than 90 days before the filing of the claim with the

Commission."

     In affirming the deputy commissioner's finding that "Rule

1.2 is not applicable given the procedural posture of the case,"

the commission found as follows:

          [E]mployer could have avoided the
          "prejudice" it is asserting it suffered in
          this case, had it merely filed - - in a
          timely manner - - an application to
          terminate or suspend the claimant's open
          award. With an open award outstanding, this
          was its duty, not the claimant's. The
          timely submission of the employer's
          application would have placed in issue the
          claimant's entitlement to, or lack of
          entitlement to further benefits under the
          open award, and the 90-day limitation of
          Rule 1.2 would likely not have been at
          issue. Instead, the employer failed to
          submit its application until six months
          after its [sic] unilaterally suspended
          benefits, and now argues that the claimant
          should be prevented from claiming payments
          of benefits more than ninety days before his
          "change in condition" application on June
          13, 2000. To construe the Commission rules
          in this fashion would . . . penalize the
          claimant for the employer's failure to file
          a timely application for hearing.


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               Therefore, we construe the letter claim
          submitted by claimant's counsel on June 13,
          2000, to have been merely a protective
          application, which was completely
          unnecessary in light of the still
          outstanding award of temporary total
          disability benefits.

     Based upon the procedural posture of this case, we find

that the commission's application of Rule 1.2(B) was reasonable

and consistent with provisions of the Act and, therefore, will

not be set aside by this Court.

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

                                                         Affirmed.




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