                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


KENNETH E. COBB
                                                MEMORANDUM OPINION *
v.   Record No. 1065-97-1                           PER CURIAM
                                                 DECEMBER, 9, 1997
SHAW PAINT & WALL PAPER COMPANY, INC.
AND
LIBERTY MUTUAL INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
             (Kenneth E. Cobb, pro se, on brief).

             (Bradford C. Jacob; Taylor & Walker, on
             brief), for appellees.



     Kenneth E. Cobb contends that the Workers' Compensation

Commission erred in finding that he was not entitled to (1) a

reinstatement of compensation benefits, and (2) a change in

treating physicians.    Cobb also requests an award for lost

earnings, partial permanent disability benefits, and pain and

suffering.    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.

                                  I.

     "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 § 17-116.010 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)).   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).   Unless we can say as a matter of law that Cobb's

evidence sustained his 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 ruling that Cobb's evidence did not prove that the

employer forged Cobb's signature on the Agreed Statement of Fact

and that Cobb was not entitled to a reinstatement of compensation

benefits, the commission found as follows:
               After considering [Cobb's] testimony, we
          are unpersuaded, as was the Deputy
          Commissioner, that [Cobb] did not sign the
          Agreed Statement of Fact. We therefore find
          no evidence of imposition or fraud.

                We do find evidence of mutual mistake,
           because the wrong reason for termination of
           the award was checked on the Agreed Statement
           of Fact. Nonetheless, in light of the
           unequivocal release to full unrestricted duty
           on December 8, 1995, which was never
           retracted and was in fact reiterated on
           August 1, 1996, by Dr. Payne, we find [Cobb]
           is not entitled to benefits after December 8,
           1995. We therefore conclude that the Deputy
           Commissioner properly declined to set aside
           the termination of [Cobb's] award.


     Based upon the testimony of Cobb and Matthew Thompson, the


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insurance adjuster, the commission could find that the parties

signed the Agreed Statement of Fact.    Because credible evidence

supports that finding, it is conclusive and binding on appeal.

Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d

782, 788 (1988).   Furthermore, the commission could reasonably

infer from the evidence that when the statement was signed the

incorrect box had been checked, indicating that Cobb had returned

to pre-injury work rather than that he had been released to

return to pre-injury work.   "Where reasonable inferences may be

drawn from the evidence in support of the commission's factual

findings, they will not be disturbed by this Court on appeal."
Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d

695, 698 (1988).   Furthermore, the undisputed medical records of

Dr. Loel Z. Payne, the treating orthopedist, proved that as of

December 8, 1995, Dr. Payne had released Cobb to return to his

pre-injury work without restrictions.

     Because the evidence supports the commission's findings,

they are binding and conclusive upon us.    See id.   In view of

those findings, we cannot say as a matter of law that the

commission erred in refusing to reinstate Cobb's compensation

benefits.

                                II.

     Whether a treating physician has released or abandoned his

patient generally is determined by the express intent of the

physician.   In some cases, the total circumstances must be




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analyzed in order to determine whether the discharge, release, or

abandonment of the patient was intended.   This is a factual

determination that the commission must make.    See Jensen Press v.

Ale, 1 Va. App. 153, 157, 336 S.E.2d 522, 524 (1985).

     In ruling that Cobb was not entitled to change his treating

physicians, the commission found as follows:
          Dr. Payne, [Cobb's] treating physician, is an
          orthopedic specialist who has appropriately
          evaluated and treated [Cobb's] injury.
          [Cobb's] condition progressed to the point
          where Dr. Payne released him to full,
          unrestricted duty. Although Dr. Payne has
          stated that he has no orthopedic treatment
          for [Cobb], he has advised [Cobb] to return
          as needed, and has suggested that [Cobb]
          might obtain relief from his muscle spasms
          through chiropractic treatment. [Cobb] must
          continue to seek treatment from Dr. Payne and
          his referrals.

     The commission's findings are amply supported by the medical

records and will not be disturbed on appeal.   Thus, we cannot

find as a matter of law that the commission erred in denying

Cobb's request for a change in treating physicians.

                                 III.

     Cobb did not make a claim before the commission for $33,280

in lost earnings, permanent partial disability benefits, or for

$50,000 in pain and suffering.    Accordingly, we will not address

those theories of recovery for the first time on appeal.   Rule

5A:18; see Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189,

192, 355 S.E.2d 347, 349 (1987).

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



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    Affirmed.




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