                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judge Bumgardner and
            Senior Judge Hodges


HARDEES OF WARSAW VILLAGE #2977,
 BODDIE NOELL ENTERPRISES, INC. AND
 GAB ROBINS NORTH AMERICA, INC.
                                             MEMORANDUM OPINION*
v.   Record No. 1389-02-2                         PER CURIAM
                                              SEPTEMBER 24, 2002
LINDA D. CAMPBELL


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Robert M. Himmel; Dale W. Webb; Gentry Locke
             Rakes & Moore, on brief), for appellants.

             (Louis D. Snesil; Louis D. Snesil, P.C., on
             brief), for appellee.


     Hardees of Warsaw Village #2977, Boddie Noell Enterprises,

Inc. and their insurer (hereinafter referred to as "employer")

contend the Workers' Compensation Commission erred in denying

employer's change-in-condition application.     The commission

found that employer failed to prove that Linda D. Campbell

(claimant) was released to perform her pre-injury work and that

her current disability was unrelated to her compensable injury

by accident.     Upon reviewing the record and the parties' briefs,

we conclude that this appeal is without merit.      Accordingly, we

summarily affirm the commission's decision.     Rule 5A:27.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     "General principles of workman's compensation law provide

that 'in an application for review of any award on the ground 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)).    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). 1

     On June 3, 1999, claimant sustained a fracture dislocation

of her left toe with subluxation of the joint.    On January 18,

2000, Dr. David Antonio performed a left second PIP fusion on

claimant's foot.     Pursuant to agreement of the parties, the

commission entered an award for temporary total disability

benefits beginning January 25, 2000.




     1
       We find no merit in employer's argument that the
commission required it to meet its burden of proof by more than
a preponderance of the evidence. This matter was before the
commission upon employer's change-in-condition application.
Therefore, employer bore the burden of proving its allegations
by a preponderance of the evidence. The commission was entitled
to weigh the totality of the medical evidence and to determine,
as fact finder, that employer's evidence did rise to the level
sufficient to sustain employer's burden of proof.

                                 - 2 -
        On May 1, 2000, Dr. Antonio recommended a repeat

arthrodesis of the second left PIP joint due to claimant's

continuing symptoms.    On June 9, 2000, Dr. Antonio performed

that procedure.    On July 12, 2000, he removed two pins from

claimant's foot.    On August 9, 2000, he referred claimant to

Dr. J. William Van Manen for a second opinion.    Dr. Van Manen

eventually took over claimant's treatment upon Dr. Antonio's

recommendation.

        On February 1, 2001, Dr. Van Manen reported that a recent

MRI of claimant's foot revealed a lipoma over the dorsum of her

foot.    He noted that that part of claimant's foot was still

painful "probably due to the traumatic episode that she

experienced at work."    He also noted that "there has been some

irritation to the nerves from the trauma . . . ."    Dr. Van Manen

then opined that claimant could go back to work without

restrictions with respect to her right foot.    However, he went

on to state, "[o]n the other hand, she does have a problem that

could be relieved with excisional biopsy of the soft tissue

mass."    Dr. Van Manen indicated that claimant would contact him

if she desired to go forward with the surgery.

        In a February 21, 2001 response to the insurer's question,

Dr. Van Manen agreed that he had released claimant to return to

her pre-injury work and that the soft tissue mass was not

causally related to the work injury.


                                 - 3 -
     On April 2, 2001, employer filed a change-in-condition

application alleging that Dr. Van Manen released claimant to

return to her pre-injury work on March 2, 2001 and that her

current disability was unrelated to her compensable injury by

accident.

     On June 6, 2001, Dr. Andrew Worthington, a neurologist,

examined claimant and reported a history of her industrial

accident and Dr. Van Manen's treatment.   Claimant complained of

pain radiating from her toe to her buttock and extreme

sensitivity.   Dr. Worthington opined as follows:

                 I, unfortunately, suspect this patient
            does have reflex sympathetic dystrophy
            ["RSD"]. I suspect it came on in
            combination with the original injury plus
            the surgery. I suspect it probably wasn't
            recognized early on. . . . I would
            recommend at this point that the patient be
            referred to Dr. Steve Long at Commonwealth
            Pain Associates so that he may take a look
            at her and confirm the diagnosis of RSD if
            he so agrees so that he may consider
            instituting the proper treatment for
            that. . . . This patient has now
            unfortunately languished for two years since
            her original surgery with what probably
            represents untreated RSD and I think it is
            probably time for diagnosis and treatment of
            the problem.

     In a June 27, 2001 response to claimant's attorney's

questions, Dr. Worthington opined that the RSD in claimant's

left lower extremity prevented her from returning to her

pre-injury work.



                                - 4 -
     Based upon this record, the commission ruled that employer

failed to sustain its burden of proving that claimant had been

released to return to her pre-injury work and that her current

disability was unrelated to her compensable industrial accident.

     In so ruling, the commission rejected Dr. Van Manen's

opinions because they conflicted with his office notes, which

indicated that claimant continued to have pain and symptoms.    In

addition, Dr. Van Manen's opinion that the soft tissue mass was

not related to the work injury was inconsistent with his

previous office note indicating that the lipoma was probably due

to the traumatic episode at work and recommending that claimant

undergo surgery.   The commission gave greater weight to

Dr. Worthington's opinion that claimant suffered from RSD, which

was causally related to her work injury and which prevented her

from returning to her pre-injury work.   The commission, as fact

finder, could reasonably infer that Dr. Worthington's use of the

word "suspect" in his office notes, "when viewed in the context

of the [June 27, 2001] letter . . . [was] not . . . speculative

but [that he] ha[d] stated his opinion that the condition is

related."

     "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 fact finder, the commission was

entitled to weigh the medical evidence, to reject Dr. Van
                              - 5 -
Manen's opinions based upon their inconsistency with his office

notes, and to give greater weight to Dr. Worthington's opinions.

"Questions 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).

     Based upon the inconsistencies between Dr. Van Manen's

office notes and his opinions, coupled with Dr. Worthington's

opinions, we cannot find as a matter of law that employer

sustained its burden of proving by a preponderance of the

evidence that claimant was released to her pre-injury work and

that her current disability was unrelated to her compensable

industrial accident.

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

                                                         Affirmed.




                               - 6 -
