COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

FLOYD S. PIKE ELECTRICAL CONTRACTORS, INC. 

 AND LIBERTY MUTUAL INSURANCE COMPANY 

 MEMORANDUM OPINION*

v. Record No. 2193-98-3 PER CURIAM 

 FEBRUARY 23, 1999 

DANNY D. MULLINS 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Deborah W. Dobbins; Gilmer, Sadler, Ingram, 

Sutherland & Hutton, on brief), for 

appellants. 

 (Paul L. Phipps; Lee & Phipps, on brief), for 

appellee. 

 Floyd S. Pike Electrical Contractors, Inc. and its insurer 

(hereinafter referred to as "employer") contend that the Workers' 

Compensation Commission ("commission") erred in finding that it 

failed to prove that Danny D. Mullins ("claimant") was capable of 

fully performing the duties of his pre-injury employment as of 

April 7, 1997. 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. See

Rule 5A:27. 

 "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 

 

 *Pursuant to Code § 17-1.413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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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 claimant was fully able to perform the 

duties of his pre-injury employment. See Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 The commission ruled that claimant's medical treatment by 

Drs. Dave G. Klock, Carey W. McKain, Robert S. Hines, Jr., and 

W.T. Williams was causally related to his problems with his lower 

back precipitated by the June 3, 1996 compensable accident. In so 

ruling and in denying employer's application, the commission 

found as follows: 

 It is clear that the claimant suffered from 

chronic lower back pain relating to his June 

3, 1996, occupational injury. On July 15, 

1997, Dr. Hines indicated in his report to 

the claimant's disability insurance carrier 

that he considered the claimant's condition 

of degenerative disc disease, as shown by 

MRIs conducted in 1996 and 1997, to be 

"chronic." Dr. Hines' examinations of the 

claimant in July 1997 and Dr. Williams' 

examinations of the claimant in July and 

August 1997 reveal pain secondary to and 

treatment for disc problems at the L4-5 

level. The claimant's initial treating 

physician, Dr. Klock, also noted problems at 

the same location. The observations are 

based chiefly on the MRIs performed in 

December 1996 and July 1997. Dr. Hines' July 

15, 1997, report to the claimant's disability 

insurance carrier noted that the results of 

the two MRIs, as far as L4-5 are concerned, 

were the "same." 
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* * * * * * * 

 . . . Dr. McKain apparently based his 

April 22, 1997, opinion that the claimant was 

able to perform the Class A Lineman duties at 

least in part on the April 2, 1997, physical 

therapist's progress report. As noted above, 

however, the claimant has suffered from 

chronic back pain during the entire period in 

question. Moreover, Dr. McKain's 

understanding of the job description was 

inaccurate. The claimant's uncontradicted 

testimony is that his performance of the 

Class A Lineman's job differed from the job 

description in several key respects. 

Moreover, the job description "averages" the 

varied duties that a Class A Lineman might 

perform. Where the claimant falls on this 

average was not known to Dr. McKain when he 

expressed his opinion. . . . Our finding is 

supported by the claimant's own testimony 

that he did not believe he would be able to 

even climb into a "bucket truck," much less 

climb a pole while wearing a twenty-five 

pound tool belt. 

 The commission articulated legitimate reasons for giving 

little probative weight to Dr. McKain's opinions and to his 

approval of the job description. In light of claimant's 

uncontradicted testimony regarding the inaccuracy of the job 

description submitted to Dr. McKain, the medical records of Drs. 

Hines and Williams, and Dr. Hines' opinion that claimant was 

unable to return to his pre-injury employment, the commission was 

entitled to conclude that Dr. McKain's medical reports and 

opinions did not constitute sufficient evidence to prove that 

claimant was capable of carrying out all of the duties of his 

pre-injury work. "Medical evidence is not necessarily 

conclusive, but is subject to the commission's consideration and 
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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 as of April 7, 1997, claimant was capable of 

returning to his pre-injury employment. Accordingly, we affirm 

the commission's decision. 

 Affirmed.