The Geon Company v. Wallace O. Peacemaker,Sr ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
THE GEON COMPANY AND
LIBERTY MUTUAL INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 1853-03-4 PER CURIAM
NOVEMBER 12, 2003
WALLACE O. PEACEMAKER, SR.
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.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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
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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
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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.
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