COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

BAY AREA MOVERS & STORAGE, INC. 

AND 

UNITED STATES FIRE INSURANCE COMPANY 

v. Record No. 2204-95-1 MEMORANDUM OPINION*

 PER CURIAM 

LUKE WAYNE MIXON, SR. MARCH 5, 1996 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (William C. Walker; Bradford C. Jacob; Taylor & 

Walker, on brief), for appellants. 

 (John H. Klein; Rutter & Montagna, on brief), for 

appellee. 

 Bay Area Movers & Storage, 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 Luke Wayne Mixon, Sr. ("claimant") was able to return to his 

pre-injury employment without restrictions as of September 20, 

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. 

 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). 

 

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

designated for publication. 
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"General principles of workman's compensation law provide that 

'[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). 

 The commission based its denial of employer's change in 

condition application on its finding that claimant's bona fide, 

but unsuccessful, attempts to perform his pre-injury work as a 

truck driver demonstrated that he was not able to return to and 

perform all of his pre-injury tasks, "because such work only 

aggravated his residual [back] injury and made the painful 

symptoms intolerable." In so ruling, the commission found as 

follows: 

 [C]laimant's own testimony establishes that 

he challenged [Dr. Richard K. Neal, Jr.'s] 

release to work on several occasions and 

discussed his problems with Dr. Neal, and 

those tasks that he asserted were too 

difficult for him. According to the 

claimant, the physician on each occasion 

advised him to continue trying and released 

him to work without restrictions. We find no 

inconsistency in the medical opinion. 

 However, the recommendation that the 
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claimant limit uninterrupted driving is tacit 

acknowledgment of the actuality of the 

employee's subjective complaints. Dr. Neal 

does not explain why he believes the 

complaints are exaggerated, since the 

claimant followed his instructions to 

continue trying to work, but it only further 

aggravated his symptomatic condition and 

prompted him to return for further medical 

treatment. It appears that Dr. Neal doubts 

the intensity of the claimant's symptoms 

because he cannot determine a cause of them. 

 The commission found claimant's testimony credible 

concerning his unsuccessful attempts to return to work. 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). The 

commission, in its role as fact finder, was entitled to accept 

claimant's testimony, which supports the commission's finding 

that claimant was not able to return to and perform all the tasks 

of his pre-injury employment as of September 20, 1994. 

 Moreover, the commission was entitled to give little weight 

to Dr. Neal's September 19, 1994 release. "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, 214 (1991). 

Although Dr. Neal released claimant to his pre-injury employment, 

he advised claimant not to sit continuously for more than one 

hour. There is no evidence in the record to indicate that 

claimant could have worked in his pre-injury employment within 
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this restriction, in light of claimant's job duties, which 

required him to drive routes within a 100-mile radius. 

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

that employer's evidence sustained its burden of proof. 

Accordingly, we affirm the commission's decision. 

 Affirmed.