Lillie Louise Peterson-Seivertson v. Ford Motor Co. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
LILLIE LOUISE PETERSON-SEIVERTSON
MEMORANDUM OPINION *
v. Record No. 0413-97-1 PER CURIAM
JULY 8, 1997
FORD MOTOR COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert J. Macbeth, Jr.; Rutter & Montagna,
on brief), for appellant.
(Barry Dorans; Samuel M. Meekins, Jr.;
Wolcott, Rivers, Wheary, Basnight & Kelly, on
brief), for appellee.
Lillie Louise Peterson-Seivertson appeals from a decision of
the Workers' Compensation Commission awarding her permanent
partial disability benefits based upon a five percent impairment
rating. Peterson-Seivertson contends that the commission erred
in (1) not awarding her benefits based upon a twenty-five percent
impairment rating; and (2) refusing to consider the November 5,
1995 report of Dr. Frank Gwathmey. 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.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the evidence established that on September 5, 1990, Dr.
Pat L. Aulicino, the treating hand/orthopedic surgeon, opined
that Peterson-Seivertson suffered from a twenty-five percent
impairment of her left upper extremity. Dr. Aulicino attributed
ten percent of this rating to Peterson-Seivertson's "cosmetically
unacceptable" scar, ten percent to swelling and persistent pain,
and five percent secondary to a band of numbness in the lateral
antebrachial cutaneous nerve distribution. Dr. Aulicino noted
that Peterson-Seivertson demonstrated good grip strength and full
range of motion in her elbow and wrist. Dr. Aulicino released
Peterson-Seivertson from his care on September 5, 1990 with a
twenty-five percent impairment of her left upper extremity due to
the injury to her left elbow.
On November 14, 1995, Dr. Samuel C. Kline, an
orthopedic/general surgeon who examined Peterson-Seivertson at
employer's request, ordered that she undergo a performance
evaluation and a functional capabilities evaluation. Based upon
the results of these evaluations, his examination of
Peterson-Seivertson, and his review of her medical records, Dr.
Kline opined on December 5, 1995, that Peterson-Seivertson
suffered from "a 5 percent impairment of her left upper extremity
due to a painful neuroma with a complete sensory deficit of her
lateral antebrachial cutaneous nerve."
Relying upon the opinions of Drs. Aulicino and Kline, the
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commission ruled that "the medical evidence, taken as a whole,"
supports an award based upon a five percent permanent partial
disability rating to the left arm.
In determining whether benefits for partial loss are to be
awarded, "the commission must rate 'the percentage of incapacity
suffered by the employee' based upon the evidence presented."
Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991) (quoting County of Spotsylvania v. Hart,
218 Va. 565, 568, 238 S.E.2d 813, 815 (1977)). "Medical evidence
is not necessarily conclusive, but is subject to the commission's
consideration and weighing." Hungerford, 11 Va. App. at 677, 401
S.E.2d at 215.
In its role as fact finder, the commission was entitled to
weigh the medical evidence and to accept Dr. Kline's opinion.
Furthermore, no evidence established that Peterson-Seivertson's
scarring, pain, or swelling contributed to loss of functional use
of her left arm. Therefore, the commission was entitled to
disregard that portion of Dr. Aulicino's impairment rating
attributable to scarring, swelling, and pain. Absent impairment
for scarring, swelling, and pain, Dr. Aulicino's remaining five
percent impairment rating due to numbness was consistent with Dr.
Kline's opinion.
Based upon this record, we cannot find as a matter of law
that Peterson-Seivertson's evidence proved that she sustained a
twenty-five permanent partial disability as a result of her
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compensable accident. Accordingly, the commission's award of
permanent partial disability benefits based upon a five percent
impairment rating is binding and conclusive.
II.
In his November 5, 1995 report, Dr. Frank Gwathmey opined
that Peterson-Seivertson suffered from a fifteen percent
impairment to the left upper extremity based upon "numbness over
the distribution of the antebrachial cutaneous nerve and also
. . . weakness in the forearm to grip testing." The commission
refused to consider Dr. Gwathmey's report, finding that it could
have been obtained and submitted to the deputy commissioner
before the record closed on August 15, 1996.
In Williams v. People's Life Ins. Co., 19 Va. App. 530, 532,
452 S.E.2d 881, 883 (1995), we set forth four requirements which
must be met before the record will be reopened on the basis of
after-discovered evidence. Those requirements are as follows:
(1) the evidence was obtained after the
hearing; (2) it could not have been obtained
prior to [the] hearing through the exercise
of reasonable diligence; (3) it is not merely
cumulative, corroborative, or collateral; and
(4) it is material and should produce an
opposite result before the commission.
Id. at 532, 452 S.E.2d at 883.
Peterson-Seivertson offered no explanation for why she could
not have obtained Dr. Gwathmey's November 5, 1995 report through
due diligence and submitted it to the commission before the
record closed. Because the commission's finding is supported by
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the record, we conclude that the commission did not abuse its
discretion in refusing to consider the report as after-discovered
evidence.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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