COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Frank and Senior Judge Bray 

Argued at Chesapeake, Virginia 

IMPACT MANAGEMENT SERVICE AND 

 TWIN CITY FIRE INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1897-02-1 JUDGE RICHARD S. BRAY 

 MARCH 11, 2003 

CATHY S. FORREST 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 William C. Walker (Amanda R. Castel; Taylor & 

Walker, P.C., on brief), for appellants. 

 Matthew H. Kraft (Chanda W. Stepney; Rutter, 

Walsh, Mills & Rutter, L.L.P., on brief), for 

appellee. 

 Impact Management Service and its insurer (employer) appeal 

a decision of the Workers' Compensation Commission (commission) 

denying employer's application to terminate an existing award of 

compensation benefits to Cathy S. Forrest (claimant). Employer 

contends the commission erroneously found employer's evidence 

insufficient to prove claimant had been released to pre-injury 

employment. Finding no error, we affirm the commission. 

 "General principles of workman's compensation law provide 

that 'in 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 § 17.1-413, 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)). Thus, unless employer's evidence established 

as a matter of law that claimant was fully capable of performing 

her pre-injury employment, the decision of the commission is 

binding and conclusive on appeal to this Court. See Tomko v. 

Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 

(1970). 

 In support of the application to terminate claimant's 

benefits, employer relied upon an "Office Note" of claimant's 

physician, Dr. Gary W. Routson, dated September 24, 2001. In 

concluding claimant "can do the work," "could go back to work,"1

Dr. Routson cited the "Summary Report" of a "Functional Capacity 

Evaluation" (FCE) of claimant. Portions of the summary 

referenced by Dr. Routson "suggest[ed] the presence of 

sub-maximal effort," an indication claimant could "do more at 

times than she . . . states or perceives," and "symptom 

magnification,"2 conditions that disqualified claimant as a 

 1

 The "full [FCE] report" is mentioned in the summary as 

"appended" but is not a part of the record before us. 

2

 Although not included in Dr. Routson's note, the summary 

also reported that claimant "had significant difficulty, pain 

and restricted range of motion bending forward when she was 

being measured with the spinal inclinometer . . . ." 

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"candidate for any type of physical rehabilitation." 

Nevertheless, Dr. Routson suggested "the insurance company 

evaluate the situation from a rehabilitation status to see what 

they can do with [claimant]."3

 Following the FCE and Dr. Routson's report, claimant was 

referred to Dr. Singh for "Pain Management" and by Dr. Singh to 

Dr. Gerry Smith of Riverside Rehabilitation Institute for like 

treatment. Dr. Smith reviewed Dr. Singh's assessment of 

claimant, which reported "chronic low back pain and leg pain," 

and performed a physical examination of claimant on October 15, 

2001. Dr. Smith's "Impression" included "low back pain" and 

"spinal asymmetry/pelvic obliquity," and he recommended claimant 

undergo an "EMG study of both legs to rule out radiculopathy," 

together with "hands on physical therapy." In a November 7, 

2001 "Certification" to the United States Department of Labor, 

Dr. Smith opined that claimant was then "able to work light duty 

if available." 

 Reviewing the instant record, the commission observed that 

"the only evidence supporting employer's application was 

Dr. Routson's September 24, 2001 office note" and the related 

FCE summary. Addressing such evidence, the commission noted 

"[i]t was not apparent . . . that Dr. Routson ever performed a 

physical examination of . . . claimant" or "reviewed the actual 

 

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3

 The report did not specifically address claimant's ability 

to perform the duties of her pre-injury employment. 
test results of the [FCE]." The commission characterized as 

"vague" Dr. Routson's conclusion that "claimant was able to 'do 

the work'" without "explain[ing] to which 'work' he was 

referring" and his recommendation that claimant "be evaluated 

'from a rehabilitation status,'" also without elaboration. The 

commission, therefore, found employer's evidence "scant and 

ambiguous," insufficient to satisfy the burden of proof 

necessary to terminate the award. 

 The commission, as fact finder, weighed the medical 

evidence and found Dr. Routson's report unpersuasive. "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). Our review of the record, more particularly 

Dr. Routson's note and attendant circumstances, together with 

Dr. Smith's subsequent report that claimant was capable of only 

light-duty work on November 7, 2001, provides ample support for 

denial of employer's application to terminate her benefits. 

 Accordingly, we affirm the decision of the commission. 

Affirmed. 

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