COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

ARC ELECTRIC, INC. AND 

 SAFEGUARD INSURANCE COMPANY 

 MEMORANDUM OPINION*

v. Record No. 2037-97-2 PER CURIAM 

 DECEMBER 23, 1997 

JAMES A. GODWIN, JR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Benjamin J. Trichilo; Trichilo, Bancroft, 

McGavin, Horvath & Judkins, on brief), for 

appellants. 

 No brief for appellee. 

 ARC Electric, Inc. and its insurer (hereinafter referred to 

as "employer") contend that the Workers' Compensation Commission 

erred in finding that employer failed to prove that James A. 

Godwin, Jr. was released to return to his pre-injury work. Upon 

reviewing the record and the employer's brief, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the commission's decision. See Rule 5A:27. 

 Pursuant to a memorandum of agreement, the commission 

entered an award in favor of Godwin for temporary total 

disability. In response to the employer's application for a 

hearing, the commission held that the medical reports of Dr. 

Rudolph Cejas, who examined Godwin while he was incarcerated, did 

not prove that Godwin's knee injury had sufficiently healed so 

 

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

designated for publication. 
 2 

that he could return to his pre-injury employment. In so ruling, 

the commission made the following findings: 

 On July 19, 1996, Dr. Cejas evaluated Godwin 

for pain in the left ear, which was diagnosed 

as otitis externa. On August 29, 1996, a 

medical record entry was made by one of Dr. 

Cejas's assistants, that [Godwin] "[m]ay 

return to work v/o Dr. Cejas." Dr. Cejas 

again evaluated Godwin on September 4, 1996, 

for recurrent pain in the left ear. He 

diagnosed otitis media of the left ear, 

prescribed medication and opined that 

[Godwin] could "[r]eturn to work." 

 

 . . . Dr. [Stephen] McCoy [, Godwin's 

treating orthopedist,] found [Godwin] totally 

disabled before his incarceration and has not 

examined him since. There is no evidence 

that Dr. Cejas evaluated [Godwin's] knee. 

The only medical records from Dr. Cejas 

relate to treatment for [Godwin's] left ear 

infection. Because Dr. Cejas does not 

mention [Godwin's] right knee injury in his 

notes, we cannot conclude that the work 

release related to [Godwin's] knee and not 

the condition for which he rendered 

treatment, complaints of left ear pain. 

 "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. 

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 the 

employer proved that Godwin's knee injury had sufficiently healed 
 3 

so that he could return to his pre-injury employment. See Tomko 

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

835 (1970). 

 The commission articulated legitimate reasons for giving 

little probative weight to Dr. Cejas' reports. In light of Dr. 

Cejas' diagnosis, which was limited to Godwin's ear problem, the 

commission was entitled to conclude that Dr. Cejas' reports did 

not relate to Godwin's knee injury. No evidence in the record 

proved that Godwin's knee injury had sufficiently healed so that 

he could carry out all of the duties of his pre-injury 

employment. 

 Because the medical evidence was subject to the commission's 

factual determination, see Hungerford Mechanical Corp. v. Hobson, 

11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991), we cannot find 

as a matter of law that the evidence proved that Godwin was 

capable of returning to his pre-injury employment. Accordingly, 

we affirm the commission's decision. 

 Affirmed.