COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

JANIE ELIZABETH HOLMAN 

 MEMORANDUM OPINION*

v. Record No. 0028-97-3 PER CURIAM 

 MAY 27, 1997 

SOUTHWESTERN VIRGINIA 

 MENTAL HEALTH INSTITUTE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Lawrence L. Moise, III; Vinyard & Moise, on 

brief), for appellant. 

 (James S. Gilmore, III, Attorney General; 

James W. Osborne, Assistant Attorney General, 

on brief), for appellee. 

 Janie Holman (claimant) contends that the Workers' 

Compensation Commission (commission) erred in finding that 

(1) she failed to prove she remained totally disabled as a result 

of her compensable August 1, 1990 injury by accident; and (2) she 

failed to prove that she marketed her residual capacity. 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 prevailing party below. See 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 

 

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

designated for publication. 
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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 her 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 claimant's change in condition application and 

finding that her evidence failed to establish that she could not 

return to any form of employment, the commission found as 

follows: 

 Dr. [Neal A.] Jewell, who has treated 

the claimant since 1991, has indicated that 

she can return to some form of employment, 

albeit not her preinjury work. We are not 

persuaded by Dr. [William E.] Kennedy's 

opinion, nor that of his referral, Dr. 

[Norman E.] Hankins. The general rule is 

that, when an attending physician is positive 

in his diagnosis, great weight will be given 

by the courts to his opinion. Pilot Freight 

Carriers, Inc. v. Reeves, 1 Va. App. 435, 339 

S.E.2d 570 (1986). Additionally, Drs. 

Kennedy and Hankins base their opinions on 

 x-rays taken in 1994, instead of more 

recent studies. Based on Dr. Jewell's 

opinion, we find that the claimant has 

residual capacity. As she has failed to 

market this capacity, she is not entitled to 

benefits. 

 The commission's findings are supported by Dr. Jewell's 
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medical records and opinions. As fact finder, the commission was 

entitled to accept Dr. Jewell's opinions and to reject the 

contrary opinions of Drs. Kennedy and Hankins. "Questions raised 

by conflicting medical opinions must be decided by the 

commission." Penley v. Island Creek Coal Co., 8 Va. App. 310, 

318, 381 S.E.2d 231, 236 (1989). We find no merit in claimant's 

argument that the commission was required to accept Dr. Hankins' 

opinion because he was the sole vocational expert. Nothing in 

the record indicates that Dr. Jewell was not qualified to render 

an opinion regarding claimant's ability to work. 

 Based upon this record, we cannot say as a matter of law 

that claimant's evidence sustained her burden of proof. 

Accordingly, we affirm the commission's decision. 

 Affirmed.