Wellmore Coal Corp. et al. v William Michael Ling

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
WELLMORE COAL CORPORATION
AND
UNITED AFFILIATES CORPORATION 	MEMORANDUM OPINION*
PER CURIAM
v. 	Record No. 0599-96-3 	AUGUST 13, 1996
WILLIAM MICHAEL LING
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. T. Mullins; Street, Street, Street, Scott &
Bowman, on brief), for appellants.
(Bobby Steve Belcher, Jr.; Wolfe & Farmer, on
brief), for appellee.
Wellmore Coal Corporation and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission ("commission") erred in finding that
employer failed to prove that William Michael Ling ("claimant")
was able to return to his pre-injury work as of May 17, 1995.
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).
"General principles of workman's compensation law provide that
'[i]n an application for review of any award on the ground of
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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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 the
employer's evidence proved that claimant was able to carry out
all of the duties of his pre-injury work, the commission's
findings are binding and conclusive upon us. 	Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission's findings are supported by the opinions of
claimant's treating physician, Dr. Joshua P. Sutherland, Jr., an
osteopath, and Dr. Robert T. Strang, an orthopedic surgeon. 	Dr.
Sutherland approved claimant's tentative return to work on a
trial basis on July 3, 1995, yet noted in his July 19, 1995
office notes that claimant was unable to work as a truck driver.
Dr. Sutherland reiterated this opinion in his August 28, 1995
report. 	Dr. Sutherland had treated claimant since the July 25,
1992 accident and was aware of claimant's job duties as a truck
driver. 	In August 1995, Dr. Strang placed restrictions upon
claimant's ability to lift and opined that he should not drive a
truck, but should consider a lighter job. 	Based upon the
opinions of Drs. Sutherland and Strang, we cannot find as a
matter of law that employer's evidence proved that claimant was
able to return to his pre-injury work.

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As fact finder, the commission was entitled to reject the
opinions of Drs. Matthew W. Wood, a neurosurgeon, and William A.
McIlwain, an orthopedic surgeon. 	Dr. McIlwain equivocated in
rendering his opinions and his records do not indicate whether he
had any specific knowledge of claimant's job duties as a truck
driver. 	Dr. Wood acknowledged claimant's continuing subjective
complaints and his unsuccessful attempt to return to work, yet
insisted that claimant could drive a coal truck. 	"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).
For these reasons, we affirm the commission's decision.
Affirmed.