                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Retired Judge Duff*


PARAMONT COAL CORPORATION AND
 PYXIS RESOURCE COMPANY
                                            MEMORANDUM OPINION**
v.   Record No. 2340-00-3                        PER CURIAM
                                              JANUARY 23, 2001
FREDDIE PAUL MULLINS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Michael F. Blair; Lisa Frisina Clement; Penn
             Stuart & Eskridge, on brief), for appellants.

             (Paul L. Phipps; Lee & Phipps, P.C., on
             brief), for appellee.


     Paramont Coal Corporation and its insurer (hereinafter

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

Compensation Commission erred in denying its application

alleging a change in Freddie Paul Mullins' 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.     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


     * Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).

     ** Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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).

     In denying employer's application, the commission found as

follows:

           There is a conflict in opinions between Dr.
           [Jim C.] Brasfield, the neurosurgeon who
           performed a laminectomy, and Dr. [Gary S.]
           Williams, the treating internist. Dr.
           Brasfield first issued a full duty release
           at the claimant's request in June of 1998,
           prior to the earlier Commission decision
           awarding continuing benefits. Since then
           Dr. Brasfield has seen the claimant five
           times, each time reiterating his full
           release. Dr. Brasfield minimized the
           claimant's discomfort following his return
           to work. Dr. Brasfield also erroneously
           stated that the claimant was continuing to
           work and was on no medication. He concluded
           that absent a neurological deficit, no
           restrictions were in order.

                By contrast, by June of 1998, Dr.
           Williams saw the claimant eighteen times.
           He prescribed medications, including
           Percocet and Prozac, of which Dr. Brasfield
           was unaware. He excused the claimant from
           work, although Dr. Brasfield was under the
           impression that the claimant was still
           working. Dr. Williams documented chronic,
           intractable back pain ever since the

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           claimant attempted to work as a heavy
           equipment operator four months after back
           surgery. Dr. Brasfield dismissed these
           complaints essentially because there were no
           surgical lesions. We find that Dr.
           Williams' opinions are more persuasive than
           Dr. Brasfield's opinions because he was more
           familiar with the claimant and his concerns
           extended beyond the narrow neurological
           assessment.

     Dr. Williams' opinions support the commission's findings.

In its role as fact finder, the commission weighed the medical

evidence and accepted the opinions of Dr. Williams, while

rejecting the contrary opinions of Dr. Brasfield.   "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).   Moreover, "[q]uestions raised by conflicting medical

opinions must be decided by the commission."   Penley v. Island

Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).

In light of Dr. Williams' opinions, we cannot find as a matter

of law that employer sustained its burden of proof.

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

                                                          Affirmed.




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