                      COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


UNITED PARCEL SERVICE OF AMERICA AND
 LIBERTY MUTUAL FIRE INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.      Record No. 0618-01-2                      PER CURIAM
                                                JULY 24, 2001
ANGEL-EYES BLACKFOOT


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (R. Ferrell Newman; Thompson, Smithers,
             Newman, Wade & Childress, on brief), for
             appellants.

             (Gregory O. Harbison; Geoffrey R. McDonald &
             Associates, P.C., on brief), for appellee.


        United Parcel Service of America and its insurer

(hereinafter referred to as "employer") contend that the

Workers' Compensation Commission erred in finding that it failed

to prove that (1) Angel-Eyes Blackfoot (claimant) was released

to return to his pre-injury employment as of April 14, 2000 by

Dr. Kenneth Zaslav, claimant's treating physician; and (2)

claimant unjustifiably refused selective employment on April 3,

2000.     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.



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

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).

     Here, employer relied solely upon a March 27, 2000

questionnaire completed by Dr. Zaslav as evidence that claimant

was released to return to full, unrestricted duties in his

pre-injury work as of April 14, 2000.   In rejecting this

evidence, the commission "decline[d] to credit it because it was

prospective" and the record did not establish that Dr. Zaslav

even examined claimant on March 27, 2000.   In so ruling, the

commission found as follows:

                The employer has not presented any
           evidence that the claimant was released to
           full, unrestricted duties on April 14, 2000.
           Dr. Zaslav's prospective release explicitly
           refers to the February 2000 [Functional
           Capacity Evaluation ("FCE")] on the question

                               - 2 -
          of work restrictions, and notes that the
          claimant would be returned to "full duty" at
          "medium" duty work on April 14, 2000
          pursuant to the "details" of the FCE. The
          FCE found that the claimant's condition was
          insufficient to return to "heavy" duty,
          pre-injury work activities, and placed
          several weight-lifting restrictions below
          the 70-pound weight-lifting requirement of
          the claimant's pre-injury employment. Dr.
          [Douglas A.] Wayne's February 2000 report
          was limited to treatment of unrelated, lower
          and middle back complaints, and offers
          nothing of relevance to this issue or to the
          issue of ongoing causation.

     Based upon the prospective nature of Dr. Zaslav's March 27,

2000 release and the ambiguity of that release, in light of the

FCE which indicated that claimant could not perform his

pre-injury work, the commission, as fact finder, was entitled to

conclude that employer's evidence was insufficient to prove that

claimant was capable of performing all of the duties of his

pre-injury employment as of April 14, 2000.

     We agree with the commission's conclusion that claimant's

failure to attend the hearing and offer contradicting evidence

did not require the commission to rule in employer's favor.

Employer bore the burden of proving its allegations,

irrespective of claimant's presence at the hearing.

     Based upon this record, we cannot find as a matter of law

that employer met its burden of proving that claimant was

capable of performing all of the duties of his pre-injury work

as of April 14, 2000.


                              - 3 -
                                  II.

     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).       "To

support a finding of refusal of selective employment 'the record

must disclose (1) a bona fide job offer suitable to the

employee's capacity; (2) [a job offer that was] procured for the

employee by the employer; and (3) an unjustified refusal by the

employee to accept the job.'"     James v. Capitol Steel Constr.

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (quoting

Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98,

335 S.E.2d 379, 380 (1985)).    The employer bore the burden of

proving it made a bona fide offer of selective employment within

the employee's residual capacity.        See American Furniture Co. v.

Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985).

     In denying employer's application alleging that claimant

unjustifiably refused selective employment, the commission found

as follows:

          [E]mployer failed to prove it offered the
          claimant work that was within his residual
          capacity on April 3, 2000. [Brian] Staub
          - - the only witness at the hearing - -
          testified about the claimant's pre-injury
          work, but offered no testimony explaining
          the nature of the "light duty" work offered,
          and offered no basis upon which to conclude
          that such work was within the claimant's
          residual capacity. Indeed, Staub had no
          first-hand knowledge of the claimant's
          attempt to work in March and April 2000.

                                 - 4 -
          Although Dr. Zaslav's March 27, 2000 release
          specifically refers to the limitations set
          out in the February 2000 FCE, Staub could
          not even state that he had seen or examined
          this report.

     In light of Staub's lack of knowledge regarding the light

duty job offered to claimant and the lack of any persuasive

evidence establishing that the light duty job was within

claimant's residual work capacity as reflected in the FCE, the

commission, as fact finder, was entitled to give little

probative weight to Staub's testimony.   Absent Staub's

testimony, no evidence proved that employer offered claimant

selective employment within his residual work capacity.    Thus,

we cannot find as a matter of law that employer's evidence

sustained its burden of proving that it made a bona fide offer

of suitable light duty work to claimant.

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

                                                   Affirmed.




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