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THE GEON COMPANY, et al. v. PEACEMAKER




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THE GEON COMPANY, et al.

v.

PEACEMAKER


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Overton

Record No. 1853-03-4

THE GEON COMPANY AND

LIBERTY MUTUAL INSURANCE COMPANY

v.

WALLACE O. PEACEMAKER, SR.

 

MEMORANDUM OPINION[1]
PER CURIAM

NOVEMBER 12, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Nate L. Adams, III; Adams & Kellas, P.C., on briefs), for

appellants.

(Nikolas E. Parthemos; Parthemos & Bryant, P.C., on brief),
for

appellee.

The Geon Company and its insurer (hereinafter referred to as
"employer") contend the

Workers’ Compensation Commission erred in awarding permanent
partial disability benefits to

Wallace O. Peacemaker, Sr. based upon a 47% impairment rating to
Peacemaker’s right upper

extremity. Employer argues that the commission erred in
calculating Peacemaker’s benefits

when it averaged the 25% impairment rating provided by the
treating physician, Dr. Bernard M.

Swope, with the average of the 75% impairment rating and the 61%
impairment provided by

independent medical examiners Dr. Herbert H. Joseph and Dr.
Benjamin V. Rezba. Employer

contends the commission should have relied solely upon the 25%
impairment rating determined

by Dr. Swope and, further, that the commission erred in
averaging the ratings. Upon reviewing

the record and the parties’ briefs, 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. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212,
390 S.E.2d 788, 788 (1990).

In awarding permanent partial disability benefits to Peacemaker,
the commission found as

follows:

[W]e conclude that it is appropriate to give greater weight to
the

opinion of [Peacemaker’s] treating physician, Dr. Swope, while
at

the same time considering the opinions of Drs. Joseph and Rezba,

both of whom conducted comprehensive independent examinations

of [Peacemaker] and have clearly taken into account

[Peacemaker’s] carpal tunnel symptoms. Given the difference of

medical opinion offered with respect to the extent of

[Peacemaker’s] impairment and [Peacemaker’s] testimony

regarding his current limitations, we find it consistent with
reason

and justice to average the 25% disability rating provided by Dr.

Swope with the average of the two ratings provided by the

independent examiners-that is, 68% (calculated by averaging the

75% rating provided by Dr. Joseph with the 61% rating provided

by Dr. Rezba). When the ratings are averaged in this manner, we

conclude that [Peacemaker] has sustained a 47% permanent partial

disability to his right upper extremity as a result of his
industrial

injury.

"[I]t is fundamental that a finding of fact made by the
Commission is conclusive and

binding upon this court on review. A question raised by
conflicting medical opinion is a

question of fact." Commonwealth v. Powell, 2 Va. App. 712,
714, 347 S.E.2d 532, 533 (1986).

Moreover, "[m]edical 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, 215 (1991).

We find no merit in employer’s argument that the commission
was required to rely solely

upon the treating physician’s opinion and to ignore the
impairment ratings provided by Drs.

Joseph and Rezba. To the contrary, although the commission, in
general, will give greater

weight to the treating physician’s opinion over a non-treating
physician, see Pilot Freight

Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570,
572 (1986), "‘[t]he probative

weight to be accorded [medical] evidence is for the Commission
to decide; and if it is in conflict

with other medical evidence, the Commission is free to adopt
that view "which is most consistent

with reason and justice,"’" Georgia-Pacific Corp. v.
Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267,

269 (2000) (quoting C.D.S. Constr. Servs. v. Petrock, 218 Va.
1064, 1070, 243 S.E.2d 236, 241

(1978)).

We also find no merit in employer’s contentions that the
commission impermissibly

averaged the three "substantially disparate"
impairment ratings and that the commission’s

procedure rose to the level of an impermissible "quotient
verdict." The commission’s decision

reflects that it considered and weighed the medical evidence in
its entirety, including the three

physicians’ conflicting opinions and claimant’s testimony,
in arriving at its calculation of

Peacemaker’s impairment rating. In doing so, the commission
gave more weight to Dr. Swope’s

opinion by averaging his impairment rating with the average of
the other two physicians’

impairment ratings, instead of merely averaging all three
impairment ratings. In addition, we

find that the commission did not violate the prohibition against
quotient verdicts. A quotient

verdict or award "implies an agreement in advance among
commissioners or jurors that each will

put down the amount he thinks the award or verdict should be,
the aggregate of such sums then

divided by the number of commissioners or jurors, and the result
reached shall be their award or

verdict." Virginia Elec. And Power Co. v. Marks, 195 Va.
468, 476, 78 S.E.2d 677, 681-82

(1953). That scenario did not occur in this case.

Put simply, in its role as fact finder, the commission was
entitled to weigh the medical

evidence, the three physicians’ conflicting opinions as to the
extent of Peacemaker’s permanent

partial impairment to his right upper extremity, and Peacemaker’s
testimony relating his

limitations. The medical records, the physicians’ opinions,
and Peacemaker’s testimony provide

credible evidence to support the commission’s award of
benefits based upon a 47% impairment

rating. Thus, that finding is binding upon us on appeal. See
Powell, 2 Va. App. at 714, 347

S.E.2d at 533.

For these reasons, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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