COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
VERNON M. ROGERS
v. Record No. 1077-97-2 MEMORANDUM OPINION *
PER CURIAM
HOME BENEFICIAL LIFE INSURANCE SEPTEMBER 9, 1997
COMPANY AND FIDELITY & GUARANTY
INSURANCE UNDERWRITERS, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Vernon M. Rogers, pro se, on brief).
No brief for appellees.
Vernon M. Rogers contends that the Workers' Compensation
Commission erred in (1) not removing the deputy commissioner from
ruling upon Rogers' claim; and (2) finding that Rogers failed to
prove permanent partial disability in his right eye causally
related to his compensable August 1988 injury by accident. Upon
reviewing the record and opening brief, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
I.
In response to Rogers' argument that the deputy
commissioner's November 14, 1996 opinion was void because the
commission did not remove the deputy commissioner from the case,
the commission found as follows: "As was stated in our March 18,
1996 Opinion, '[t]here was no evidence or indication in the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
record that the Deputy Commissioner will be unable to render a
fair and impartial decision.' A review of the commission's file
confirms this. The Deputy Commissioner acted fairly and
impartially."
Our review of the record supports the commission's finding.
No evidence tends to prove that the deputy commissioner was
unable to render a fair and impartial decision. Accordingly, we
cannot say that the commission abused its discretion in refusing
to remove the deputy commissioner from the case.
II.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Moreover, "[q]uestions raised by conflicting medical opinions
must be decided by the commission." Penley v. Island Creek Coal
Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
The commission ruled that Rogers failed to prove permanent
partial disability due to loss of vision in his right eye
causally related to his compensable August 1988 injury by
accident. That ruling was based on a May 3, 1995 report by Dr.
Garth Stevens, Jr., an associate clinical professor of
ophthalmology at the Medical College of Virginia, who examined
Rogers. Dr. Stevens noted that Rogers had "a history of radiator
cap injury in 1988, with corneal abrasion and traumatic iritis at
that time." However, Dr. Stevens diagnosed Rogers as suffering
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from an idiopathic quiet uveitis OU and traumatic uveitis of the
right eye, unrelated to the current ocular disease. Although Dr.
Stevens noted that Rogers had a history of glaucoma, Dr. Stevens
found no glaucoma as of May 3, 1995.
The commission accepted Dr. Stevens' opinion and rejected
the opinions of Dr. Clifton L. Peay. Furthermore, the commission
found that Dr. Peay's records were not clear in establishing a
cause for the glaucoma that Dr. Peay found at some times but not
at others. The following principle is well established:
"The general rule is that when an attending
physician is positive in his diagnosis
. . . , great weight will be given by the
courts to his opinion. However, when it
appears . . . that the diagnosis is shaded by
doubt, and there is medical expert opinion
contrary to the opinion of the attending
physician, then the trier of fact is left
free to adopt the view which is most
consistent with reason and justice."
Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339
S.E.2d 570, 572 (1986) (citations omitted). Accordingly, the
commission, as fact finder, was entitled to accept Dr. Stevens'
positive opinion regarding causation and to reject Dr. Peay's
unclear and conflicting opinions.
In light of Dr. Stevens' opinion that no causal connection
existed between Rogers' current ocular disease and the
compensable August 1988 injury by accident, we cannot say as a
matter of law that Rogers' evidence sustained his burden of
proof. The commission's findings are binding and conclusive upon
us. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173
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S.E.2d 833, 835 (1970).
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For these reasons, we affirm the commission's decision.
Affirmed.
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