Cumberland Resources and AIG Claims Services, Inc. v. David Michael Whitt ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner
CUMBERLAND RESOURCES AND
AIG CLAIMS SERVICES, INC.
MEMORANDUM OPINION *
v. Record No. 3028-08-3 PER CURIAM
APRIL 21, 2009
DAVID MICHAEL WHITT
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(John R. Sigmond; Penn, Stuart & Eskridge, on brief), for
appellants.
(D. Allison Mullins; Lee & Phipps, P.C., on brief), for appellee.
Cumberland Resources and its insurer (collectively “employer”) appeal a decision of the
Workers’ Compensation Commission modifying the deputy commissioner’s award of permanent
partial disability benefits to David Michael Whitt (“claimant”) in connection with a knee and
ankle injury sustained on May 10, 2005. While the commission denied claimant’s request to
change his treating physician from Dr. Whitman to Dr. McGarry, it averaged the impairment
ratings of the two physicians with respect to claimant’s knee. Employer contends that the
commission’s decision erroneously afforded Dr. McGarry treating physician status by giving his
opinion equal weight to that of Dr. Whitman. It also asserts that credible evidence did not
support the commission’s decision to average the impairment ratings because Dr. McGarry’s
impairment rating is not supported by his records.
We have reviewed the record and the commission’s opinion and find that this appeal is
without merit. “Questions raised by conflicting medical opinions must be decided by the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
commission.” Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236
(1989). Here, no evidence was presented that claimant’s limitations resulted from a pre-existing
condition. Instead, two physicians, both of whom treated claimant and performed surgery on his
knee, reached divergent conclusions regarding the permanent impairment resulting from his
injury. Dr. McGarry’s conclusion regarding the degree of impairment was based upon the
decreased range of motion in claimant’s knee. “‘Where there is a conflict of evidence . . . the
[c]ommission’s finding of fact is conclusive’ when supported by credible evidence.” Imperial
Trash Serv. v. Dotson, 18 Va. App. 600, 603, 445 S.E.2d 716, 718 (1994) (quoting Byrd v.
Stonega Coke & Coal Co., 182 Va. 212, 220, 28 S.E.2d 725, 729 (1944)). “[T]he evidence of
[any given treating] physician . . . is not binding on the [c]ommission. The probative weight to
be accorded such evidence is for the [c]ommission to decide; and if it is in conflict with other
medical evidence, the [c]ommission is free to adopt that view which is most consistent with
reason and justice.” C.D.S. Constr. Services v. Petrock, 218 Va. 1064, 1071, 243 S.E.2d 236,
241 (1978) (citation and internal quotation marks omitted); see, e.g., Princess Anne Builders,
Inc., v. Faucette, 37 Va. App. 102, 112-13, 554 S.E.2d 113, 118-19 (2001) (“[A]lthough the
commission was entitled to give lesser weight to [the consulting physician’s] opinion because he
was not [claimant’s] treating physician, it was not obligated to do so.”).
Accordingly, we dispense with oral argument and summarily affirm because the facts and
legal contentions are adequately presented in the materials before the Court and argument would
not aid the decisional process. See Code § 17.1-403; Rule 5A:27.
Affirmed.
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