COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
AUGUSTA CORRECTIONAL CENTER/
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION *
v. Record No. 1147-96-3 PER CURIAM
NOVEMBER 12, 1996
WANDA L. BAZZREA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James S. Gilmore, III, Attorney General;
Donald G. Powers, Assistant Attorney General,
on briefs), for appellant.
(George L. Townsend; Chandler, Franklin &
O'Bryan, on brief), for appellee.
Augusta Correctional Center/Commonwealth of Virginia
("employer") contends that the Workers' Compensation Commission
("commission") erred in denying employer's change in condition
application on the ground that employer failed to prove that, as
of September 11, 1995, Wanda L. Bazzrea's ("claimant") disability
was no longer causally related to her compensable October 1, 1994
injury by accident. 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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).
In denying employer's application, the commission found as
follows:
Dr. [John C.] MacIlwaine continues to treat
the claimant for complaints related to both
arms. However, nowhere in his reports does
he indicate that she has recovered from the
compensable carpal tunnel syndrome on the
right [sic]. 1 Neither does Dr. MacIlwaine
indicate a date or time frame when the
claimant's disability ceased to be caused by
the compensable injury and changed to
disability caused by a potential occupational
disease involving one or both arms. Finally,
it is not clear from his report of September
11, 1995, which arm symptoms are causing her
disability or whether the disability is
caused by symptoms in both arms. If the
disability is caused, in part, by continuing
left arm symptoms, no change in condition is
established.
Based upon the ambiguous nature of the opinions expressed by
Dr. MacIlwaine in his reports concerning the cause of claimant's
1
Employer accepted as compensable disability related to
claimant's October 1, 1994 left hand and wrist injury, which
resulted in a left wrist sprain and subsequent carpal tunnel
syndrome.
2
continuing disability, the commission, as fact finder, was
entitled to give little weight to Dr. MacIlwaine's September 11,
1995 opinion. "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). Based upon this record, we cannot find
as a matter of law that employer's evidence proved that
claimant's disability after September 11, 1995 was no longer
causally related to her compensable October 1, 1994 injury by
accident.
Accordingly, we affirm the commission's decision.
Affirmed.
3