COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

ABELL INDUSTRIES AND WOOD PRODUCTS OF 

 VIRGINIA SELF-INSURANCE ASSOCIATION 

 MEMORANDUM OPINION*

v. Record No. 2195-97-2 PER CURIAM 

 JANUARY 13, 1998 

JAMES LINWOOD LOFTIS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (R. Temple Mayo; Taylor and Walker, on 

brief), for appellants. Appellants 

submitting on brief. 

 (Stephen D. Bloom; Townsend and Bloom Law 

Offices, on brief), for appellee. Appellee 

submitting on brief. 

 Abell Industries and its insurer (hereinafter referred to as 

(employer) appeal a decision of the Workers' Compensation 

Commission denying its application alleging that James Linwood 

Loftis (claimant) unjustifiably refused selective employment 

offered to him by employer in October 1996. Employer contends 

that the commission erred in finding that employer failed to 

prove that the duties required of the selective employment fell 

within claimant's residual work capacity. Finding no error, we 

affirm. 

 "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. 
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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 

employer proved that the duties of the selective employment 

offered to claimant fell within his medical restrictions. 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: 

 From this record, the Deputy Commissioner 

found that the employer did not prove that 

the light duty job was suitable. We agree 

with this finding. When Dr. [David J.] Muron 

examined the claimant on May 23, 1996, he 

stated that the claimant was magnifying his 

symptoms and could perform sedentary work at 

least four hours a day. According to the 

claimant, Dr. Muron advised him he could work 

four to five hours a day. Dr. [Steven M.] 

Fiore last saw the claimant on March 6, 1996, 

at which time he did not release the claimant 

to work. [On July 30, 1996 and October 18, 

1996,] [w]ithout any current examination of 

the claimant, Dr. Fiore released him to 

full-time work. We agree with the Deputy 

Commissioner that Dr. Muron's release to 

part-time work is the more current and 

reliable expression of restrictions. As the 

Deputy Commissioner noted, Dr. Muron's later 

acceptance in January, 1997 of the full-time 

work release was phrased as deference to Dr. 

Fiore's opinion. Since Dr. Fiore had not 

seen the claimant since March, 1996, this 

release is not persuasive. 

 The record reflects that the claimant 

could perform light duty work for four to 
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five hours a day at the time of the 

employer's offer of a full-time job in 

October, 1996. The job offered was therefore 

not suitable. In addition, on February 25, 

1997, the claimant became totally disabled 

per Dr. Fiore. 

 The commission articulated legitimate reasons for giving 

little probative weight to Dr. Fiore's release of claimant to 

full-time light-duty work and for finding Dr. Muron's May 1996 

release to part-time work more persuasive. In light of these 

reasons, the commission was entitled to conclude that employer 

failed to prove that its offer of full-time selective employment 

was suitable to claimant's residual work capacity. "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 medical evidence was subject to the commission's 

factual determination, we cannot find as a matter of law that the 

evidence proved that claimant unjustifiably refused selective 

employment offered to him by employer. Accordingly, we affirm 

the commission's decision. 

 Affirmed.