Reynolds Metals Co., et al. v Ralph Allen Frye

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
REYNOLDS METALS COMPANY
AND
INDEMNITY INSURANCE COMPANY
OF NORTH AMERICA 	MEMORANDUM OPINION*
PER CURIAM
v. 	Record No. 0353-96-3 	AUGUST 6, 1996
RALPH ALLEN FRYE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Kathryn Spruill Lingle; Midkiff & Hiner, on
brief), for appellants.
(Ginger Jonas Largen; Morefield, Kendrick,
Hess & Largen, on brief), for appellee.
Reynolds Metals Company and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that it failed to prove
that Ralph Allen Frye was able to return to his pre-injury work
as of February 2, 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.
"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
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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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)). 	Furthermore, "it is fundamental that a finding of
fact made by the Commission is conclusive and binding upon this
court on review. 	A question raised by conflicting medical
opinion is a question of fact." 	Commonwealth v. Powell, 2 Va.
App. 712, 714, 347 S.E.2d 532, 533 (1986).
The commission accepted the opinions of Drs. Neal A. Jewell
and Pierce D. Nelson. 	Their opinions support the commission's
conclusion that Frye was not able to fully perform all of the
duties of his pre-injury work as of February 2, 1995. 	In its
role as fact finder, the commission rejected the contrary opinion
of Dr. Jim C. Brasfield. 	"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).
The restrictions Dr. Jewell placed upon Frye's physical
abilities in 1992 and 1995 were consistent with a 1991 strength
evaluation report. 	The record supports the commission's finding
that no evidence showed that Frye's condition had improved
significantly since the 1991 study. 	Therefore, the commission
did not err in relying upon the study, which supports the
commission's finding that Frye's pre-injury work was unsuitable
to his residual capacity.

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Based upon this record, we cannot conclude as a matter of
law that employer's evidence sustained its burden of proving that
Frye was able to return to his pre-injury work as of February 2,
1995. 	Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173
S.E.2d 833, 835 (1970). 	Accordingly, we affirm the commission's
decision.
Affirmed.