Blake Construction Co., et al v Henry Young

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
BLAKE CONSTRUCTION COMPANY, INC.
AND
STANDARD FIRE INSURANCE COMPANY MEMORANDUM OPINION*
v. 	Record No. 1497-95-4 	PER CURIAM
DECEMBER 5, 1995
HENRY YOUNG
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Alan D. Sundburg; Friedlander, Misler, Friedlander,
Sloan & Herz, on brief), for appellants.
(Lawrence J. Pascal; Ashcraft & Gerel, on brief), for
appellee.
Blake Construction Company, 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 Henry Young ("claimant") was able to perform
light-duty or sedentary work as of July 25, 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.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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).
"General principles of workman's compensation law provide that

2
'[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).
In denying employer's change in condition application and in
finding that employer failed to prove that claimant was able to
perform light-duty work, the commission found as follows:
The only medical release to work was
issued by Dr. [Richard J.] Sternberg, who
imposed significant limitations and
ultimately deferred to the treating
physician, Dr. [Robert T.] Gaughan, regarding
the claimant's weight bearing status. 	Dr.
Gaughan's reports are silent on the issue of
work capacity. 	Dr. [L.J.] Wagner's report
indicates the claimant was not assigned to
work upon arrival at the Allenwood facility
due to medical problems. 	He concluded that
continuing the status of "medically
unassigned" is appropriate, observing
residual problems related to the fracture,
including migration of the screws and
possible disfiguration.
* 	* 	* 	* 	* 	* 	*
The employer had the burden to prove
that the claimant was partially disabled.
The claimant's treating physician, Dr.
Gaughan, has not reported the claimant was

3
able to perform light duty. 	Dr. Sternberg
thought the claimant could perform some
sedentary work but deferred to Dr. Gaughan's
opinion. 	Dr. Wagner's statement is
ambiguous.
The commission's findings are supported by the medical
records. 	Therefore, we are bound by these findings. 	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).
Based upon the lack of a release from Dr. Gaughan, the
treating physician, for claimant to return to work, and the
ambiguous opinions rendered by Drs. Sternberg and Wagner, we
cannot say as a matter of law that employer's evidence sustained
its burden of proof. 	Accordingly, we affirm the commission's
decision.
Affirmed.