COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
RICHMOND MOTOR COMPANY
AND
VADA GROUP SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1674-95-2 DECEMBER 29, 1995
MICHAEL J. DAVIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William B. Pierce, Jr.; William F. Karn; Williams &
Pierce, on brief), for appellants.
(Andrew J. Reinhardt; Kerns, Kastenbaum & Reinhardt,
on brief), for appellee.
Richmond Motor Company and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that employer failed to
prove that Michael J. Davis was able to return to his pre-injury
work. 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 appeal, 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 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 the
employer's evidence proved that Davis was able to carry out all
of the duties of his pre-injury work, 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's findings are supported by the February 7,
1995 report of Dr. Bernard A. Lublin, Davis' treating physician.
Dr. Lublin never released Davis to his pre-injury work without
restrictions. On February 7, 1995, Dr. Lublin recorded Davis'
complaints of left shoulder, right lumbar, and right lower
extremity pain. Dr. Lublin scheduled Davis for an MRI of his
cervical spine and for a neurological evaluation with EMG of the
left arm. Dr. Lublin planned to see Davis after these studies.
The commission, in its role as fact finder, was entitled to
give little weight to the December 28, 1994 physical capabilities
form completed by Dr. J.K. Wilson and relied upon by employer.
Employer did not present any other medical records from Dr.
Wilson supporting his conclusion that Davis could return to his
pre-injury work. In addition, employer did not show that Dr.
Wilson was aware of the requirements of Davis' pre-injury work.
Moreover, Dr. Wilson did not complete significant portions of the
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form.
Based upon this record, we cannot conclude as a matter of
law that employer's evidence sustained its burden of proving that
Davis was able to return to his pre-injury work as of December
28, 1994. Accordingly, we affirm the commission's decision.
Affirmed.
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