COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

GRAND PIANO & FURNITURE COMPANY, INC. 

 AND CONTINENTAL INSURANCE COMPANY 

 MEMORANDUM OPINION*

v. Record No. 0827-98-4 PER CURIAM 

 SEPTEMBER 8, 1998 

QUINTON FOGLE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Jonathan S. Rochkind, on brief), for 

appellants. 

 (Jimmy L. Hill; Roger Ritchie & Partners, on 

brief), for appellee. 

 Grand Piano & Furniture Company and its insurer (hereinafter 

referred to as "employer") contend that the Workers' Compensation 

Commission ("commission") erred in finding that employer failed 

to prove that Quinton Fogle ("claimant") was capable of 

performing his pre-injury work as of March 19, 1997. 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. See 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 

evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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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)). The commission's findings are binding and 

conclusive upon us, unless we can say as a matter of law that 

employer proved that claimant was fully able to perform the 

duties of his pre-injury employment. See 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: 

 While Dr. [Patrick] Capone released the 

claimant to full duty, he also stated in his 

deposition that if this required the claimant 

to do heavy lifting of more than 30 or 40 

pounds, he would have difficulty with this. 

Dr. Capone also stated that he believed the 

claimant's complaints were legitimate, and 

that the claimant suffers from 

post-concussive syndrome. Dr. Capone noted 

that he deferred to Dr. [T.J.] Schulz for an 

orthopaedic evaluation. We note that Dr. 

Schulz, who is also a treating physician, 

indicated on March 18, 1997, that the 

claimant was not released to return to work 

until seen again in five weeks. The 

diagnosis was a cervical, thoracic, and 

lumbar strain, and left shoulder pain. While 

the doctor's examination notes of that date 

may have focused on the left shoulder pain 

and carpal tunnel syndrome, neither of which 

are currently before the Commission, his 

disability slip did not limit the disability 

to these concerns. In view of Dr. Capone's 

questioning of the claimant's lifting 

capacity and Dr. Schulz's continuing 

disability, we cannot find that the employer 

has established the claimant's ability to 

return to pre-injury work. 

 The commission's findings are amply supported by the record. 

 The commission articulated legitimate reasons for giving little 
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probative weight to Dr. Capone's March 18, 1997 work-release. In 

light of these reasons, the commission was entitled to conclude 

that Dr. Capone's medical reports and opinions did not constitute 

sufficient evidence to prove that claimant was capable of 

carrying out all of the duties of his pre-injury employment. 

"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). 

 Because the weight accorded to the medical evidence was 

subject to the commission's factual determination, we cannot find 

as a matter of law that the evidence proved that as of March 19, 

1997, claimant was capable of returning to his pre-injury 

employment. Accordingly, we affirm the commission's decision. 

 Affirmed.