COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

HARRINGTON CORPORATION 

AND 

INSURANCE COMPANY OF NORTH AMERICA 

 MEMORANDUM OPINION*

v. Record No. 3088-96-3 PER CURIAM 

 MAY 20, 1997 

JESSE ARGENBRIGHT 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Patricia C. Arrighi; Powell and Arrighi, on 

brief), for appellants. 

 (Robert E. Evans; Evans Law Office, on 

brief), for appellee. 

 Harrington Corporation and its insurer (hereinafter 

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

Compensation Commission (commission) erred in finding that 

employer failed to prove that Jesse Argenbright was released to 

return to his pre-injury employment without restrictions as of 

May 3, 1996. 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. 

 The commission held that the letter reports of Dr. John 

Jane, Argenbright's treating neurosurgeon, did not prove that 

Argenbright was fully capable of carrying out all of the duties 

of his pre-injury employment. The commission found that, at 

 

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

designated for publication. 
 2 

best, Dr. Jane's reports constituted a "trial release," which was 

not the equivalent of an unconditional release to pre-injury 

employment. In so ruling, the commission made the following 

findings: 

 We find Dr. Jane's letter of May 3, 1996, 

 to constitute insufficient proof of 

[Argenbright's] ability to return to 

 pre-injury work. First, this letter is not 

based upon a contemporaneous examination of 

[Argenbright]. Secondly, the letter is 

inconsistent with the report of March 13, 

1996. The earlier report refers to an 

objective finding of scar tissue at the 

surgical site surrounding the L5 nerve root. 

 The May 3, 1996, letter fails to mention 

this problem. Thirdly, the March 13, 1996, 

letter states that "we were really unable to 

ascertain his physical capabilities at this 

time." Dr. Jane fails to explain on May 3, 

1996, why, in the absence of any further 

examination or diagnostic studies, that he is 

able to conclude that [Argenbright's] 

physical capabilities are now ascertainable, 

and sufficient to allow a return to work. 

Finally, we are troubled by Dr. Jane's 

suggestion that [Argenbright's] only two 

choices are surgery, or a return to work. 

Dr. Jane fails to explain the apparent 

inconsistency between [Argenbright's] need 

for surgery and ability to return to work. 

 "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)). The commission's findings are binding and 
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conclusive upon us, unless we can say as a matter of law that 

employer proved that Argenbright was fully capable of returning 

to his pre-injury employment. See Tomko v. Michael's Plastering 

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

 The commission articulated legitimate reasons for giving 

little probative weight to Dr. Jane's reports. In light of these 

reasons, the commission was entitled to conclude that Dr. Jane's 

reports did not constitute sufficient evidence to prove that 

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

pre-injury employment. "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 as of May 3, 1996, Argenbright was capable 

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

affirm the commission's decision. 

 Affirmed.