Fairfax County School Board v Ronald R. Wisniewski

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
FAIRFAX COUNTY SCHOOL BOARD
v. 	Record No. 0060-95-4 	MEMORANDUM OPINION*
PER CURIAM
RONALD ROBERT WISNIEWSKI 	JUNE 27, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael N. Salveson; Hunton & Williams, on brief),
for appellant.
(Lawrence J. Pascal; Ashcraft & Gerel, on brief),
for appellee.
Fairfax County School Board (employer) contends that the
Workers' Compensation Commission (commission) erred in finding
that the employer failed to prove that Ronald Robert Wisniewski
(claimant) was able to return to his pre-injury work as an art
teacher as of January 5, 1993. 	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 appellate review, 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 an 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.

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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 sustained its 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).
In denying the employer's change in condition application
and in finding that the employer failed to prove that claimant
was released to return to his pre-injury work as of January 5,
1993, the commission found as follows:
Both Drs. [James W.] Preuss and [Joyce E.]
Paulk limit the claimant to lifting no more
than 20 pounds. 	Similarly, both report that
he can stand for no more than four hours per
day, with no bending or twisting. 	All of
these limitations are inconsistent with the
job requirements reported by Dim and the
claimant. 	While Dr. Preuss did initially
note a 25-pound lifting restriction, that
restriction was changed to 20 pounds shortly
thereafter, which has been consistently
adhered to by both health care providers. 	We
also note that the last functional
capabilities evaluation, completed four
months before Dr. Preuss' recommendation of
January 5, 1993, also reflects a 20-pound
lifting restriction.
The commission's findings with respect to claimant's
restrictions are supported by the medical records and opinions of

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Drs. Paulk and Preuss rendered in March and June 1993.1 In
addition, the commission's finding that claimant's job duties
fell outside of these restrictions is supported by the testimony
of claimant and of Dim, a coworker. 	Therefore, we are bound by
these findings. 	On appeal, this Court "does not retry the facts,
reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses." 	Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
Based upon this record, we cannot say as a matter of law
that the employer's evidence sustained its burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.
1The August 11, 1992 Physical Tolerance Form reflected that
the claimant could lift twenty pounds on a frequent basis and a
maximum of twenty-eight pounds on an occasional basis. 	From this
evidence, the commission inferred that, "the last functional
capabilities evaluation, completed four months before Dr. Preuss'
recommendation of January 5, 1993, also reflects a 20-pound
lifting restriction." 	"Where reasonable inferences may be drawn
from the evidence in support of the commission's factual
findings, they will not be disturbed by this Court on appeal."
Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d
695, 698 (1988).