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AREA TRANSIT AUTHORITY
FEBRUARY 8, 2000
Record No. 2337-99-4
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY
BRENDA L. COOPER
FROM THE VIRGINIA WORKERS’ COMPENSATION
Present: Judges Elder, Bumgardner and Lemons
(Robert C. Baker, Jr.; Mell, Brownell &
Baker, on brief), for appellant.
(Julie H. Heiden; Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for appellee.
MEMORANDUM OPINION PER
Washington Metropolitan Area Transit Authority
(employer) contends that the Workers’ Compensation Commission
(commission) erred in finding that it failed to prove that Brenda
L. Cooper (claimant) was able to return to her pre-injury work as
of September 30, 1998. 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. See
"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)). 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. See 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, the commission found as follows:
Although Dr. [Laura] Isensee agreed that most
of [claimant's] complaints are subjective, she stated that she
had found a decreased range of motion in the neck and shoulders,
and has found the claimant to be tender to palpation over the
cervical spine. She stated that on one occasion she observed an
oblong area in the left mid to lower back region which "did
not feel like a lipoma to me, but more like, what I describe, as
Dr. Isensee acknowledged that the claimant’s
pain complaint is what prevented her from being able to return to
her pre-injury work as a bus driver. Although Dr. Isensee
admitted that she relied upon the claimant’s statements as to
what she could or could not do, Dr. Isensee opined that the
claimant’s complaints are real, based upon Dr. Isensee’s own
observations regarding the pain. Dr. Isensee stated that she did
not rely only upon the claimant’s statements in deciding work
capacity, but based that assessment on her own observations from
having taken care of the claimant over an extended period. Dr.
Isensee opined that claimant’s pain complaints were causally
related to the work accident, and that claimant had not yet
reached maximum medical improvement. Dr. Isensee also noted that
in November 1998, the claimant attempted unsuccessfully to return
to work as a bus driver. Dr. Isensee feels that the claimant is
presently capable of light-duty work, and opines that claimant is
not a malingerer.
. . . We find the opinions of Dr. Isensee
persuasive, and find that the employer has failed to prove that
claimant is capable of performing the duties of her pre-injury
work as a bus driver.
"Medical evidence is not necessarily
conclusive, but is subject to the commission’s consideration and
weighing." Hungerford Mechnical Corp. v. Hobson, 11
Va. App. 675, 677, 401 S.E.2d 213, 214 (1991). In its role as
fact finder, the commission was entitled to weigh the medical
evidence. The commission did so and articulated legitimate
reasons for accepting the opinions of the treating neurologist,
Dr. Isensee, while rejecting the contrary opinions of independent
medical examiner, Dr. Kenneth W. Eckmann. "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).
Based upon Dr. Isensee’s opinions, we cannot
find as a matter of law that employer sustained its burden of
proving that claimant was able to return to her pre-injury work
September 30, 1998. Accordingly, we affirm the
 Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.