COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

FAIRFAX COUNTY SCHOOL BOARD 

v. Record No. 0060-95-4 MEMORANDUM OPINION*

 PER CURIAM 

RONALD ROBERT WISNIEWSKI JUNE 27, 1995 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Michael N. Salveson; Hunton & Williams, on brief), 

 for appellant. 

 (Lawrence J. Pascal; Ashcraft & Gerel, on brief), 

 for appellee. 

 Fairfax County School Board (employer) contends that the 

Workers' Compensation Commission (commission) erred in finding 

that the employer failed to prove that Ronald Robert Wisniewski 

(claimant) was able to return to his pre-injury work as an art 

teacher as of January 5, 1993. 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 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 

'[i]n an application for review of an 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. 
 2 

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 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 the employer's change in condition application 

and in finding that the employer failed to prove that claimant 

was released to return to his pre-injury work as of January 5, 

1993, the commission found as follows: 

Both Drs. [James W.] Preuss and [Joyce E.] 

Paulk limit the claimant to lifting no more 

than 20 pounds. Similarly, both report that 

he can stand for no more than four hours per 

day, with no bending or twisting. All of 

these limitations are inconsistent with the 

job requirements reported by Dim and the 

claimant. While Dr. Preuss did initially 

note a 25-pound lifting restriction, that 

restriction was changed to 20 pounds shortly 

thereafter, which has been consistently 

adhered to by both health care providers. We 

also note that the last functional 

capabilities evaluation, completed four 

months before Dr. Preuss' recommendation of 

January 5, 1993, also reflects a 20-pound 

lifting restriction. 

 The commission's findings with respect to claimant's 

restrictions are supported by the medical records and opinions of 
 3 

Drs. Paulk and Preuss rendered in March and June 1993.1

 In 

addition, the commission's finding that claimant's job duties 

fell outside of these restrictions is supported by the testimony 

of claimant and of Dim, a coworker. 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 this record, we cannot say as a matter of law 

that the employer's evidence sustained its burden of proof. 

Accordingly, we affirm the commission's decision. 

 Affirmed.

 

 1The August 11, 1992 Physical Tolerance Form reflected that 

the claimant could lift twenty pounds on a frequent basis and a 

maximum of twenty-eight pounds on an occasional basis. From this 

evidence, the commission inferred that, "the last functional 

capabilities evaluation, completed four months before Dr. Preuss' 

recommendation of January 5, 1993, also reflects a 20-pound 

lifting restriction." "Where reasonable inferences may be drawn 

from the evidence in support of the commission's factual 

findings, they will not be disturbed by this Court on appeal." 

Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 

695, 698 (1988).