                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


SAFEWAY STORES, INC.
                                                MEMORANDUM OPINION *
v.   Record No. 1598-97-4                           PER CURIAM
                                                 NOVEMBER 18, 1997
TAMMIE DANISE RULE


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            (Kevin J. O'Connell; O'Connell & O'Connell,
            on brief), for appellant.
            (James F. Green; Ashcraft & Gerel, on brief),
            for appellee.



     Safeway Stores, Inc. (employer) appeals a decision of the

Workers' Compensation Commission denying its application alleging

a change in condition.    Employer contends that the commission

erred in finding that Tammie Danise Rule was not released to

return to her pre-injury work.    We affirm the commission's

decision.

     The commission held that Dr. Jeffrey P. Rosen's August 21,

1996 medical report did not prove that Rule was fully capable of

carrying out all of the duties of her pre-injury employment.      The

commission based that holding upon the following findings:
          Dr. Rosen indicated that [Rule] should
          undergo a three- to four-week rehabilitative
          program for her ankle. However, if this
          program was not approved by the insurance
          carrier, then she would be released to
          regular work. If we found this statement to
          be a full-duty release, the carrier, and not
          the physician, would control medical
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
          management and treatment. It is not the
          carrier's privilege to determine necessary or
          appropriate treatment, but rather the
          treating physician's duty. The claimant has
          not reached medical improvement because she
          has not yet undergone the recommended
          treatment.

               Even should we hold that this medical
          report is not ambiguous, it still does not
          qualify as a full-duty release. A mere
          statement that [Rule] can return to work does
          not meet the burden of the moving
          party. . . . There is insufficient proof
          that [Rule] is able to perform all of her
          preinjury duties.

     "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)).   The commission's factual findings are binding and

conclusive upon us, when they are supported by credible evidence.
 See Code § 65.2-706; James v. Capitol Steel Constr. Co., 8 Va.

App. 512, 515, 382 S.E.2d 487, 488 (1989).   Thus, unless we can

say as a matter of law that employer proved that Rule was fully

capable of returning to her pre-injury employment, we must affirm

the commission's decision.    See Tomko v. Michael's Plastering

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     The commission articulated legitimate reasons for finding

Dr. Rosen's report ambiguous and for giving it little probative


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weight.   Dr. Rosen's conclusion that Rule could return to work

was conditioned upon his finding that she should first undergo

"an aggressive physical therapy program."   However, Dr. Rosen

noted Rule's concern that her employer might not consent to the

recommended physical therapy program.    Dr. Rosen also noted that

he had informed the employer of his recommendation and states

that "[f]rom an orthopaedic standpoint once she completes her

physical therapy program, she will be at a point of maximum

medical improvement with no impairment from any of her previous

injuries."   Recognizing that the employer might refuse to pay for

the therapy, Dr. Rosen states that "if the [employer denies] the

patient's physical therapy . . . then I would place her at a

point of maximum medical improvement."   The language of the

report supports the commission's finding that the report

impermissibly surrendered medical management of Rule's claim to

employer.
     In light of these reasons, the commission was entitled to

conclude that Dr. Rosen's report did not constitute sufficient

evidence to prove that Rule was capable of carrying out all of

the duties of her pre-injury employment.    "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).

     Because the medical evidence was subject to the commission's

factual determination and credibly supports the commission's



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findings, we cannot find as a matter of law that the evidence

proved that as of August 21, 1996, Rule was capable of returning

to her pre-injury employment.   Accordingly, we affirm the

commission's decision.

                                                        Affirmed.




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