Grand Piano & Furniture Company, et al. v Fogle

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
GRAND PIANO & FURNITURE COMPANY, INC.
AND CONTINENTAL INSURANCE COMPANY MEMORANDUM OPINION*
v. 	Record No. 0827-98-4 	PER CURIAM
SEPTEMBER 8, 1998
QUINTON FOGLE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jonathan S. Rochkind, on brief), for
appellants.
(Jimmy L. Hill; Roger Ritchie & Partners, on
brief), for appellee.
Grand Piano & Furniture Company and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission ("commission") erred in finding that employer failed
to prove that Quinton Fogle ("claimant") was capable of
performing his pre-injury work as of March 19, 1997. 	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.
"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.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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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)). 	The commission's findings are binding and
conclusive upon us, unless we can say as a matter of law that
employer proved that claimant was fully able to perform the
duties of his pre-injury employment. 	See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying employer's application, the commission found as
follows:
While Dr. [Patrick] Capone released the
claimant to full duty, he also stated in his
deposition that if this required the claimant
to do heavy lifting of more than 30 or 40
pounds, he would have difficulty with this.
Dr. Capone also stated that he believed the
claimant's complaints were legitimate, and
that the claimant suffers from
post-concussive syndrome. 	Dr. Capone noted
that he deferred to Dr. [T.J.] Schulz for an
orthopaedic evaluation. 	We note that Dr.
Schulz, who is also a treating physician,
indicated on March 18, 1997, that the
claimant was not released to return to work
until seen again in five weeks. 	The
diagnosis was a cervical, thoracic, and
lumbar strain, and left shoulder pain. 	While
the doctor's examination notes of that date
may have focused on the left shoulder pain
and carpal tunnel syndrome, neither of which
are currently before the Commission, his
disability slip did not limit the disability
to these concerns. 	In view of Dr. Capone's
questioning of the claimant's lifting
capacity and Dr. Schulz's continuing
disability, we cannot find that the employer
has established the claimant's ability to
return to pre-injury work.
The commission's findings are amply supported by the record.
The commission articulated legitimate reasons for giving little

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probative weight to Dr. Capone's March 18, 1997 work-release. 	In
light of these reasons, the commission was entitled to conclude
that Dr. Capone's medical reports and opinions did not constitute
sufficient evidence to prove that claimant was capable of
carrying out all of the duties of his pre-injury employment.
"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).
Because the weight accorded to the medical evidence was
subject to the commission's factual determination, we cannot find
as a matter of law that the evidence proved that as of March 19,
1997, claimant was capable of returning to his pre-injury
employment. 	Accordingly, we affirm the commission's decision.
Affirmed.