                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


RECYCLING CENTER, INC. AND
 RELIANCE INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 1074-00-4                         PER CURIAM
                                               OCTOBER 17, 2000
VITELIO MARTINEZ


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (S. Vernon Priddy III; Jeffrey W. Saunders;
             Sands, Anderson, Marks & Miller, on brief),
             for appellants.

             (Stephen A. Bou; Bou & Bou, on brief), for
             appellee.


     Recycling Center, Inc. and its insurer (hereinafter

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

Compensation Commission erred in finding that employer failed to

prove that Vitelio Martinez (claimant) was released to return to

full-duty employment as of November 19, 1998.       Upon reviewing

the record and 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).

     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).

     So viewed, the evidence proved that on June 2, 1998,

claimant was hit by a truck in the course of his employment,

causing him to sustain severe facial lacerations, a cervical

fracture at the C4-5 level, multiple transverse fractures at the

L3-4 level, and an AC joint separation of the left shoulder.

Employer accepted the claim as compensable and paid compensation

benefits pursuant to an award until March 10, 1999.

     On March 2, 1999, employer filed an application seeking to

terminate claimant's benefits on the ground that he had been

released to return to his pre-injury work as of February 9, 1999

by Dr. Adel Kebaish.   Employer amended its application at the

September 14, 1999 hearing to allege that claimant had also been

released to return to his pre-injury work as of November 19,

1998 by Dr. Kebaish.

                                 - 2 -
        On September 3, 1998, Dr. Kebaish, claimant's treating

orthopedic surgeon, released claimant to return to work on a

modified schedule of twenty hours per week, with no lifting of

more than twenty pounds, for four weeks, beginning September 15,

1998.    On September 10, 1998, Dr. Kebaish noted that claimant

has a left AC joint separation in his shoulder.    Dr. Kebaish

continued claimant on light duty.

        On October 22, 1998, Dr. Kebaish opined that claimant could

work twenty hours per week for three weeks, then thirty hours

per week for three weeks, and then full time.

        On November 19, 1998, Dr. Kebaish noted that claimant still

complained about left shoulder symptoms.    However, Dr. Kebaish

opined as follows:

             [C]onsidering the description of
             [claimant's] job, I think he is capable to
             return to regular duty with minimal
             modification. He does not believe so;
             accordingly, I referred him for a second
             opinion to Dr. Seung Paik regarding his left
             shoulder. Patient should be seen here in
             four weeks for final f/u.

As an addendum to his November 19, 1998 office notes, Dr.

Kebaish noted that claimant's rehabilitation nurse called him

and stated that claimant's "lawyer is quite unhappy about my

sending him back to work, and requested some clarification."

Dr. Kebaish wrote that he "would be happy to refer [claimant] to

Dr. Paik."




                                 - 3 -
     On November 30, 1998, Dr. Paik examined claimant.     Dr. Paik

noted that claimant came to see him "for an orthopedic

consultation with a case manager to discuss his present time

condition and the possibility of his returning to work."    Dr.

Paik prescribed outpatient physical therapy for one month and

strength exercises.   Dr. Paik opined that claimant should be

restricted from full duty with lifting of no more than twenty

pounds.   On December 30, 1998, Dr. Paik noted that he discussed

AC joint surgery with claimant.   At that time, Dr. Paik

continued claimant's previous restrictions for one month.

     On January 29, 1999, Dr. Paik noted that claimant still

suffered from the left shoulder problem and pain in his neck.

Dr. Paik noted that "his returning to his previous duties at

work is pretty much guarded."   Dr. Paik restricted claimant to

occasional lifting up to twenty pounds and frequent lifting up

to ten pounds.

     On March 24, 1999, Dr. Paik noted that claimant still had

soreness in his neck and left shoulder and that he still had

"pain [in his left shoulder] with pressure when doing any heavy

lifting."   Dr. Paik opined as follows:

            [Claimant] should not return to work at the
            present time, which requires running and
            jumping. It also requires him picking up
            heavy trash bags. His returning to his
            regular duties at work is pretty much
            guarded at the present time. He should find
            a job that requires less lifting and stress.



                                - 4 -
        On February 9, 1999, Dr. Kebaish signed off on a job

description for claimant provided to him by employer.    The job

description indicated that claimant was required to frequently

lift and carry between fifteen and twenty-five pounds.

        Claimant testified that his job required that he frequently

lift between thirty and forty-pound recycling buckets.    Claimant

stated that he could not perform this type of lifting, because

it caused him neck and left shoulder pain.    Claimant stated that

he attempted to return to work on two days in November 1998, but

he could not continue due to the pain caused by lifting the

heavy recycling buckets.    Claimant also testified that his job

required lifting above his shoulders, which he could not do

without pain.

        Based upon claimant's testimony and Dr. Kebaish's opinions,

the commission ruled that employer failed to prove that claimant

was capable of performing his pre-injury work as of November 19,

1998.    In light of claimant's testimony regarding his actual job

duties, his failed attempt to return to work in November 1998,

and Dr. Paik's opinions, the commission was entitled to give

little probative weight to Dr. Kebaish's November 19, 1998 work

release and his February 9, 1999 approval of the job

description.

        We find no merit in employer's argument that the commission

erred in treating Dr. Paik's opinions as a defense to employer's

application.    As Dr. Paik noted, the referral to him was to

                                 - 5 -
address the need for surgical intervention with regard to the AC

joint separation and to discuss the possibility of claimant

returning to work.   Dr. Paik's treatment and opinions rendered

close in time to Dr. Kebaish's treatment and opinions were

properly before the commission and constituted evidence which

conflicted with Dr. Kebaish's opinion regarding claimant's

ability to return to his pre-injury employment as of November

19, 1998.   The sole issue before the commission concerned

claimant's ability to return to full-duty employment.   Employer

bore the burden of proof on this issue, and the commission, as

fact finder, was entitled to consider conflicting evidence in

ruling upon employer's application.

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

that employer's evidence sustained its burden of proof.

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

                                                          Affirmed.




                               - 6 -
