COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

MELVIN P. WAGNER 

v. Record No. 0971-95-2 MEMORANDUM OPINION*

 PER CURIAM 

R. S. HARRITAN & COMPANY OCTOBER 31, 1995 

AND 

AMERICAN MOTORISTS INSURANCE COMPANY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Geoffrey R. McDonald; Laura L. Geller; 

McDonald & Snesil, on brief), for 

appellant. 

 (Lynne Jones Blain; Lori Morris Whitten; 

Morris & Morris, on brief), for appellees. 

 Melvin P. Wagner ("claimant") contends that the Workers' 

Compensation Commission erred in finding that he failed to prove 

a compensable change in condition entitling him to temporary 

total disability benefits beginning April 6, 1994. 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. 

 

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

designated for publication. 

 On appeal, we view the evidence in the light most favorable 

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

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 
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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 

claimant's evidence sustained his burden of proof, the 

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

v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 

835 (1970). 

 The commission denied claimant's application on the ground 

that his evidence failed to show that he is presently disabled as 

a result of his compensable May 14, 1990 right elbow injury. In 

so ruling, the commission found as follows: 

 The evidence establishes the claimant 

probably has continuing right elbow 

symptomatology related to his work accident, 

which is consistent with the permanent 

impairment, and that the claimant is at least 

partially impaired and unable to return to 

his pre-injury employment because of his 

aggregate problems. However, it is the 

carpal tunnel syndrome and perhaps the back 

and right knee problems for which he has 

sought medical care in 1994. The right elbow 

condition is addressed only peripherally. 

The evidence presented does not establish any 

change in condition with regard to the work 

injury since 1991, not to the extent that the 

residual impairment contributes to the 

present work incapacity. 

 These factual findings are consistent with the medical 

records and support the commission's decision. The commission 
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previously found that claimant's carpal tunnel syndrome and his 

back problems were not causally related to his compensable injury 

by accident. These findings are final as to these parties. 

Therefore, any disability which claimant may suffer as a result 

of these conditions is not employer's responsibility. 

 Dr. William Walker's testimony and records indicate that 

claimant's right elbow condition remained essentially unchanged 

since he was awarded permanent partial disability benefits in 

1993 based on a 27% impairment rating. Dr. Walker attributed 

claimant's total disability primarily to his carpal tunnel 

syndrome. 

 Therefore, based upon this record, we cannot say as a matter 

of law that claimant met his burden of proving that his current 

disability is related to his compensable right elbow injury. 

Accordingly, we affirm the commission's decision. 

 Affirmed.