Melvin P. Wagner v R.S. Harritan & Co., et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
MELVIN P. WAGNER
v. 	Record No. 0971-95-2 	MEMORANDUM OPINION*
PER CURIAM
R. S. HARRITAN & COMPANY 	OCTOBER 31, 1995
AND
AMERICAN MOTORISTS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Geoffrey R. McDonald; Laura L. Geller;
McDonald & Snesil, on brief), for
appellant.
(Lynne Jones Blain; Lori Morris Whitten;
Morris & Morris, on brief), for appellees.
Melvin P. Wagner ("claimant") contends that the Workers'
Compensation Commission erred in finding that he failed to prove
a compensable change in condition entitling him to temporary
total disability benefits beginning April 6, 1994. 	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.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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

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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
claimant's evidence sustained his burden of proof, 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 denied claimant's application on the ground
that his evidence failed to show that he is presently disabled as
a result of his compensable May 14, 1990 right elbow injury. 	In
so ruling, the commission found as follows:
The evidence establishes the claimant
probably has continuing right elbow
symptomatology related to his work accident,
which is consistent with the permanent
impairment, and that the claimant is at least
partially impaired and unable to return to
his pre-injury employment because of his
aggregate problems. 	However, it is the
carpal tunnel syndrome and perhaps the back
and right knee problems for which he has
sought medical care in 1994. 	The right elbow
condition is addressed only peripherally.
The evidence presented does not establish any
change in condition with regard to the work
injury since 1991, not to the extent that the
residual impairment contributes to the
present work incapacity.
These factual findings are consistent with the medical
records and support the commission's decision. 	The commission

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previously found that claimant's carpal tunnel syndrome and his
back problems were not causally related to his compensable injury
by accident. 	These findings are final as to these parties.
Therefore, any disability which claimant may suffer as a result
of these conditions is not employer's responsibility.
Dr. William Walker's testimony and records indicate that
claimant's right elbow condition remained essentially unchanged
since he was awarded permanent partial disability benefits in
1993 based on a 27% impairment rating. 	Dr. Walker attributed
claimant's total disability primarily to his carpal tunnel
syndrome.
Therefore, based upon this record, we cannot say as a matter
of law that claimant met his burden of proving that his current
disability is related to his compensable right elbow injury.
Accordingly, we affirm the commission's decision.
Affirmed.