                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


JIMMY WAYNE POWELL

v.   Record No. 2108-96-1                       MEMORANDUM OPINION *
                                                    PER CURIAM
ST. JOE CONTAINER COMPANY                        JANUARY 28, 1997
AND
LIBERTY MUTUAL INSURANCE COMPANY


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
             (Robert J. Macbeth, Jr.; Rutter & Montagna,
             on brief), for appellant.

             (Robert A. Rapaport; Lynne M. Ferris; Knight,
             Dudley, Clarke & Dolph, on brief), for
             appellees.



     Jimmy Wayne Powell contends that the Workers' Compensation

Commission erred in finding that he failed to prove he was

disabled as of January 31, 1995, due to the compensable

aggravation of his preexisting C6-7 cervical condition.      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 prevailing party below.     R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

     So viewed, the evidence established that on January 31,

1995, Dr. Peter M. Klara, a neurosurgeon, completed a disability

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
form, indicating that Powell was "disabled for approximately 30

days or until eval of EMG & NCV."    Dr. Klara did not indicate on

the form the specific cause of Powell's disability.     Powell

testified that he understood from Dr. Klara that he was to remain

out of work until surgery was performed.

     The evidence proved that in addition to the compensable

aggravation of Powell's preexisting C6-7 cervical condition,

Powell also suffered from degenerative changes throughout his

spine and a previous back injury in 1988.   Dr. Klara did not

comment upon Powell's disability in his later medical reports.

None of the other physicians who examined Powell reported the

cause of Powell's disability.
     The commission found that Powell proved that his compensable

July 7, 1993 injury by accident caused an aggravation of his

preexisting C6-7 cervical condition, rendering employer

responsible for medical treatment related to the C6-7 cervical

condition.   The parties did not appeal this finding.   The

commission found, however, that although Powell proved that

medical treatment related to the aggravation of his preexisting

C6-7 cervical condition was compensable, neither Powell's

testimony nor Dr. Klara's January 31, 1995 office note was

sufficient to establish that Powell was disabled as of January

31, 1995, due to his compensable condition.

     "General principles of workman's compensation law provide

that '[i]n an application for review of any award on the ground




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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 findings are binding and

conclusive upon us unless we can say as a matter of law that

Powell proved he was disabled after January 31, 1995 and that his

disability was causally related to the compensable aggravation of

his C6-7 preexisting cervical condition.      Tomko v. Michael's

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

     In light of the undisputed evidence that Powell suffered

from degenerative changes throughout his spine and from a prior

back injury in 1988, which were unrelated to Powell's compensable

injury by accident, the commission was entitled to give little

weight to Powell's testimony that he was advised to remain out of

work until surgery was performed.      Moreover, the commission, in

its role as fact finder, found Dr. Klara's January 31, 1995 note

to be inconclusive.    "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).     As the commission noted in

its response to Powell's Motion for Reconsideration:
          [Dr. Klara's January 31, 1995] report does
          not indicate that the disability is based
          upon any aggravation of the claimant's
          preexisting condition in the industrial
          accident. You are aware that the claimant



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          suffers from some degenerative changes
          throughout the spine, and a prior back injury
          in 1988. Only the cervical condition was
          aggravated in the industrial injury.
          Moreover, we cannot determine whether this
          note indicates actual physical disability, or
          is a precaution pending diagnostic studies.
          The MRI then revealed a small bulging
          cervical disc, but there was no further
          comment in any of the medical reports
          regarding disability after this condition was
          found. The office note of January 31, 1995,
          in summary, is not sufficient to establish
          disability, even when considered in
          conjunction with the claimant's testimony.

     Because the medical evidence was subject to the commission's

factual determination, we cannot find as a matter of law that the

evidence established a causal link between the compensable

aggravation of Powell's C6-7 preexisting cervical condition and

his asserted post-January 31, 1995 disability.   Accordingly, we

affirm the commission's finding that Powell's evidence failed to

sustain his burden of proving he suffered from causally-related

disability after January 31, 1995.

                                             Affirmed.




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