                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Overton


ABELL INDUSTRIES AND WOOD PRODUCTS OF
 VIRGINIA SELF-INSURANCE ASSOCIATION
                                                  MEMORANDUM OPINION *
v.   Record No. 2195-97-2                             PER CURIAM
                                                   JANUARY 13, 1998
JAMES LINWOOD LOFTIS


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            (R. Temple Mayo; Taylor and Walker, on
            brief), for appellants. Appellants
            submitting on brief.
            (Stephen D. Bloom; Townsend and Bloom Law
            Offices, on brief), for appellee. Appellee
            submitting on brief.



     Abell Industries and its insurer (hereinafter referred to as

(employer) appeal a decision of the Workers' Compensation

Commission denying its application alleging that James Linwood

Loftis (claimant) unjustifiably refused selective employment

offered to him by employer in October 1996.    Employer contends

that the commission erred in finding that employer failed to

prove that the duties required of the selective employment fell

within claimant's residual work capacity.    Finding no error, we

affirm.

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

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

employer proved that the duties of the selective employment

offered to claimant fell within his medical restrictions.     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:
           From this record, the Deputy Commissioner
           found that the employer did not prove that
           the light duty job was suitable. We agree
           with this finding. When Dr. [David J.] Muron
           examined the claimant on May 23, 1996, he
           stated that the claimant was magnifying his
           symptoms and could perform sedentary work at
           least four hours a day. According to the
           claimant, Dr. Muron advised him he could work
           four to five hours a day. Dr. [Steven M.]
           Fiore last saw the claimant on March 6, 1996,
           at which time he did not release the claimant
           to work. [On July 30, 1996 and October 18,
           1996,] [w]ithout any current examination of
           the claimant, Dr. Fiore released him to
           full-time work. We agree with the Deputy
           Commissioner that Dr. Muron's release to
           part-time work is the more current and
           reliable expression of restrictions. As the
           Deputy Commissioner noted, Dr. Muron's later
           acceptance in January, 1997 of the full-time
           work release was phrased as deference to Dr.
           Fiore's opinion. Since Dr. Fiore had not
           seen the claimant since March, 1996, this
           release is not persuasive.
                The record reflects that the claimant
           could perform light duty work for four to


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          five hours a day at the time of the
          employer's offer of a full-time job in
          October, 1996. The job offered was therefore
          not suitable. In addition, on February 25,
          1997, the claimant became totally disabled
          per Dr. Fiore.


     The commission articulated legitimate reasons for giving

little probative weight to Dr. Fiore's release of claimant to

full-time light-duty work and for finding Dr. Muron's May 1996

release to part-time work more persuasive.   In light of these

reasons, the commission was entitled to conclude that employer

failed to prove that its offer of full-time selective employment

was suitable to claimant's residual work capacity.   "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, we cannot find as a matter of law that the

evidence proved that claimant unjustifiably refused selective

employment offered to him by employer.   Accordingly, we affirm

the commission's decision.
                                                         Affirmed.




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