COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

CROWDER CONSTRUCTION COMPANY 

AND 

LIBERTY MUTUAL INSURANCE COMPANY 

 MEMORANDUM OPINION*

v. Record No. 1779-97-1 PER CURIAM 

 DECEMBER 9, 1997 

WAYNE E. ELLIS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (R. Ferrell Newman; Thompson, Smithers, 

Newman & Wade, on brief), for appellants. 

 (Randolph A. Raines, Jr.; Ferguson, Rawls, 

MacDonald, Overton & Grissom, on brief), for 

appellee. 

 Crowder Construction Company and its insurer (hereinafter 

referred to as "employer") contend that the Workers' Compensation 

Commission erred in denying its application alleging a 

change-in-condition on the ground that employer failed to prove 

that Wayne E. Ellis' current pulmonary symptoms were no longer 

causally related to his compensable August 30, 1996 injury by 

accident. 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 appeal, we view the evidence in the light most favorable 

to the party prevailing below. See R.G. Moore Bldg. Corp. v. 

 

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

designated for publication. 
 2 

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 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)). Unless we can say as a matter of law that 

employer's evidence sustained its burden of proof, the 

commission's findings are binding and conclusive upon us. See

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

833, 835 (1970). 

 In denying employer's change-in-condition application, the 

commission found as follows: 

 [E]mployer has not proven that [Ellis] has 

recovered from the effects of his toxic 

exposure and returned to his pre-injury 

state. [Ellis'] treating internist, 

Dr. [G. Wyatt] Webb, did not release him to 

return to work when he saw [Ellis] on October 

17, 1996. Dr. [F.D.] Elias stated that much

of the disease was present before the injury, 

but the injury has exacerbated his 

pre-existing disease. Even Dr. [Scott] Irby 

answered "yes" and "no" to the question 

whether the current complaints of shortness 

of breath and weakness are related to the 

injury. Although both Dr. Irby and Dr. Elias 

note that the mass caused by the inhalation 

injury has resolved, this does not indicate 

that the current symptoms are unrelated to 

the injury or that [Ellis] has returned to 

his pre-injury state. The employer is 

responsible for an injury which aggravates or 

accelerates a pre-existing condition. 
 3 

 Employer relied upon the opinions of Dr. Irby. However, as 

the commission correctly noted, although Dr. Irby opined on 

November 6, 1996 that Ellis' current treatment was related to his 

chronic lung condition, Dr. Irby also opined that Ellis' current 

complaints of shortness of breath and weakness were, at least in 

part, causally related to his compensable injury by accident. 

Based upon Dr. Irby's conflicting statements, the commission was 

entitled to give little weight to his opinions. "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). Absent Dr. Irby's opinion, there is no persuasive 

medical evidence that claimant's symptoms were no longer causally 

related to the compensable aggravation of his pre-existing 

chronic obstructive pulmonary disease. Accordingly, we cannot 

say that employer's evidence sustained its burden of proof as a 

matter of law. 

 For these reasons, we affirm the commission's decision. 

 Affirmed.