Record No. 1893-94-1Court of Appeals of Virginia.
Decided: April 11, 1995
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(William E. Baggs, on briefs), for appellant.
(P. Dawn Bishop; Sands, Anderson, Marks Miller, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray
MEMORANDUM OPINION[*]
PER CURIAM
Frank W. Waterfield contends that the Workers’ Compensation Commission erred in finding that he failed to prove that he was entitled to an award of permanent partial disability benefits pursuant to Code Sec. 65.2-503 for the loss of use of both of his arms. 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 appeal, we view the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). “[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). Unless we can say as a matter of law that Waterfield’s evidence sustained his burden of proving entitlement to permanent partial disability benefits, 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).
On April 6, 1992, Waterfield sustained an injury to his neck arising out of and in the course of his employment with Hollingsworth Antiques (“employer”). Employer accepted Waterfield’s claim as compensable and paid temporary total and partial compensation benefits for various periods up until November 17, 1993. On December 8, 1993, Waterfield filed an application seeking an award of permanent partial disability benefits for a 72.5% loss of use of both arms.
Dr. Richard K. Neal, Jr., Waterfield’s treating neurosurgeon, opined in several letters that Waterfield did not sustain any loss of use of his arms or hands as a result of the April 6, 1992 neck injury. Dr. Neal opined that, although Waterfield’s neck injury resulted in permanent lifting restrictions, the only permanent partial disability was to his neck. Dr. Lonnie Slone, a chiropractor from whom Waterfield sought unauthorized treatment, opined that Waterfield sustained a 72.5% permanent loss of use of both of his upper extremities. Dr. Slone derived this rating from the lifting requirements of a Federal Express employee. Dr. Slone’s rating was not based upon A.M.A. guidelines.
In denying Waterfield’s application, the commission gave greater weight to Dr. Neal’s opinion. Dr. Neal had treated Waterfield since June 8, 1992 and had performed two surgical procedures on Waterfield’s cervical spine. It was not error for the commission to accept Dr. Neal’s opinion, and to reject Dr. Slone’s opinion. In cases of conflicting medical evidence, “[t]he general rule is that when an attending physician is positive in his diagnosis . . ., greater weight will be given by the courts to his opinion.” Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986). Dr. Neal’s opinion supports the commission’s decision. The existence of “contrary evidence in the record is of no consequence if there is credible evidence to support the commission’s finding.” Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
For the reasons stated, we affirm the commission’s decision.
Affirmed.