COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

COMMUNITY HEALTH CARE - 

 RUSSELL COUNTY MEDICAL CENTER AND 

 TRANSPORTATION INSURANCE COMPANY 

 MEMORANDUM OPINION*

v. Record No. 1420-97-3 PER CURIAM 

 OCTOBER 21, 1997 

CORDELIA C. HANNAH 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Jennifer G. Marwitz; Law Offices of Roya 

Palmer, on brief), for appellants. 

 (Gregory R. Herrell; Arrington, Schelin & 

Herrell, on brief), for appellee. 

 Community Health Care - Russell County Medical Center and 

its insurer (hereinafter referred to as "employer") appeal a 

decision of the Workers' Compensation Commission denying 

employer's application alleging a change-in-condition. Employer 

contends that the commission erred in finding that it failed to 

prove that (1) Cordelia Hannah (claimant) had been released on 

September 10, 1996, to return to her pre-injury work, and (2) her 

continuing disability was not causally related to her compensable 

September 10, 1993 injury by accident. Finding no error, we 

affirm the commission's decision. 

 "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 

 

 *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)). "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). 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 capable of returning to 

her pre-injury employment or that her continuing disability was 

no longer causally related to her compensable injury by accident. 

See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 

S.E.2d 833, 835 (1970). 

 In finding that employer's evidence failed to sustain its 

burden of proof, the commission was not persuaded by the opinion 

of the independent medical examiner, Dr. Glenn Freeman. In so 

ruling, the commission found as follows: 

 Four physicians have treated or examined 

the claimant. It is Dr. Freeman's view 

that the claimant made an excellent 

recovery from her injury three years ago 

and that when seen on September 10, 1996, 

had returned to her pre-injury status. Dr. 

[Calvin J.] Johnson examined the claimant 

on December 5, 1996 and has written two 

inconsistent reports. . . . Against this, 

Dr. [Dwight L.] Bailey could "[n]ot see how 

that this patient can return to her work as 

a nurse, lifting and moving patients." 

 Dr. [Jim C.] Brasfield served as the 

claimant's treating physician until June 7, 

1994. We find that his last report is 
 3 

ambiguous. While he says that his exam did 

not "[s]uggest to me restrictions," he also 

says that the claimant is capable of work 

activities "[a]s I have so noted." The 

only work activity that he had noted was 

light duty with restrictions against 

lifting more than 50 pounds. It does not 

appear there has been any attempt, either 

through interrogatories or another 

examination, to clarify this ambiguity. 

 We do not find Dr. Freeman's opinion 

persuasive because of Dr. Bailey's contrary 

opinion and because of the ambiguity in Dr. 

Brasfield's opinion. 

 Thus, the commission explained its decision to give little 

probative weight to Dr. Freeman's opinion, resulting in the 

conclusion that the medical evidence was insufficient to prove 

either that claimant was capable of performing the duties of her 

pre-injury employment or that her continuing disability was no 

longer causally related to her compensable injury by accident. 

We are unable to find as a matter of law that the evidence proved 

otherwise and, therefore, affirm the decision. 

 Affirmed.