COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

BLAKE CONSTRUCTION COMPANY, INC. 

AND 

STANDARD FIRE INSURANCE COMPANY 

 MEMORANDUM OPINION*

v. Record No. 1497-95-4 PER CURIAM 

 DECEMBER 5, 1995 

HENRY YOUNG 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Alan D. Sundburg; Friedlander, Misler, Friedlander, 

Sloan & Herz, on brief), for appellants. 

 (Lawrence J. Pascal; Ashcraft & Gerel, on brief), for 

appellee. 

 Blake Construction Company, Inc. and its insurer 

(hereinafter collectively referred to as "employer") contend that 

the Workers' Compensation Commission erred in denying its change 

in condition application. The commission found that employer 

failed to prove that Henry Young ("claimant") was able to perform 

light-duty or sedentary work as of July 25, 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 appellate review, 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 
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'[i]n an application for review of an 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. 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 and in 

finding that employer failed to prove that claimant was able to 

perform light-duty work, the commission found as follows: 

 The only medical release to work was 

issued by Dr. [Richard J.] Sternberg, who 

imposed significant limitations and 

ultimately deferred to the treating 

physician, Dr. [Robert T.] Gaughan, regarding 

the claimant's weight bearing status. Dr. 

Gaughan's reports are silent on the issue of 

work capacity. Dr. [L.J.] Wagner's report 

indicates the claimant was not assigned to 

work upon arrival at the Allenwood facility 

due to medical problems. He concluded that 

continuing the status of "medically 

unassigned" is appropriate, observing 

residual problems related to the fracture, 

including migration of the screws and 

possible disfiguration. 

* * * * * * * 

 The employer had the burden to prove 

that the claimant was partially disabled. 

The claimant's treating physician, Dr. 

Gaughan, has not reported the claimant was 
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able to perform light duty. Dr. Sternberg 

thought the claimant could perform some 

sedentary work but deferred to Dr. Gaughan's 

opinion. Dr. Wagner's statement is 

ambiguous. 

 The commission's findings are supported by the medical 

records. Therefore, we are bound by these findings. On appeal, 

this Court "does not retry the facts, reweigh the preponderance 

of the evidence, or make its own determination of the credibility 

of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 

890, 894, 407 S.E.2d 32, 35 (1991). 

 Based upon the lack of a release from Dr. Gaughan, the 

treating physician, for claimant to return to work, and the 

ambiguous opinions rendered by Drs. Sternberg and Wagner, we 

cannot say as a matter of law that employer's evidence sustained 

its burden of proof. Accordingly, we affirm the commission's 

decision. 

 Affirmed.