Bay Area Movers, etc., et al. v Luke W. Mixon, Sr.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
BAY AREA MOVERS & STORAGE, INC.
AND
UNITED STATES FIRE INSURANCE COMPANY
v. 	Record No. 2204-95-1 	MEMORANDUM OPINION*
PER CURIAM
LUKE WAYNE MIXON, SR. 	MARCH 5, 1996
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(William C. Walker; Bradford C. Jacob; Taylor &
Walker, on brief), for appellants.
(John H. Klein; Rutter & Montagna, on brief), for
appellee.
Bay Area Movers & Storage, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in denying its change in condition
application. 	The commission found that employer failed to prove
that Luke Wayne Mixon, Sr. ("claimant") was able to return to his
pre-injury employment without restrictions as of September 20,
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.
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).
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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"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
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. 	Tomko
v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,
835 (1970).
The commission based its denial of employer's change in
condition application on its finding that claimant's bona fide,
but unsuccessful, attempts to perform his pre-injury work as a
truck driver demonstrated that he was not able to return to and
perform all of his pre-injury tasks, "because such work only
aggravated his residual [back] injury and made the painful
symptoms intolerable." 	In so ruling, the commission found as
follows: [C]laimant's own testimony establishes that
he challenged [Dr. Richard K. Neal, Jr.'s]
release to work on several occasions and
discussed his problems with Dr. Neal, and
those tasks that he asserted were too
difficult for him. 	According to the
claimant, the physician on each occasion
advised him to continue trying and released
him to work without restrictions. 	We find no
inconsistency in the medical opinion.
However, the recommendation that the

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claimant limit uninterrupted driving is tacit
acknowledgment of the actuality of the
employee's subjective complaints. 	Dr. Neal
does not explain why he believes the
complaints are exaggerated, since the
claimant followed his instructions to
continue trying to work, but it only further
aggravated his symptomatic condition and
prompted him to return for further medical
treatment. 	It appears that Dr. Neal doubts
the intensity of the claimant's symptoms
because he cannot determine a cause of them.
The commission found claimant's testimony credible
concerning his unsuccessful attempts to return to work. 	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). 	The
commission, in its role as fact finder, was entitled to accept
claimant's testimony, which supports the commission's finding
that claimant was not able to return to and perform all the tasks
of his pre-injury employment as of September 20, 1994.
Moreover, the commission was entitled to give little weight
to Dr. Neal's September 19, 1994 release. 	"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, 214 (1991).
Although Dr. Neal released claimant to his pre-injury employment,
he advised claimant not to sit continuously for more than one
hour. 	There is no evidence in the record to indicate that
claimant could have worked in his pre-injury employment within

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this restriction, in light of claimant's job duties, which
required him to drive routes within a 100-mile radius.
Based upon this record, we cannot find as a matter of law
that employer's evidence sustained its burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.