Goodyear Tire & Rubber Co., et al. v Arthur R Deel

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COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

GOODYEAR TIRE & RUBBER COMPANY
AND
TRAVELERS INDEMNITY COMPANY OF ILLINOIS

MEMORANDUM OPINION

Vv. Record No. 1649-98-3 PER CURIAM
DECEMBER 8, 1998

ARTHUR RAY DEEL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Gregory T. Casker; Daniel, Vaughan, Medley &
Smitherman, P.C., on brief), for appellants.

No brief for appellee.

Goodyear Tire & Rubber Company and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission ("commission") erred in finding that Arthur Ray Deel
("claimant") proved that his compensable right upper extremity
injury had reached maximum medical improvement, and, therefore,
he was entitled to an award of permanent partial disability
benefits based upon a thirty-three percent permanent partial
impairment rating. Upon reviewing the record and employer's
brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.

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 § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

- 2 -
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).
In granting claimant's application, the commission found as
follows: [T]he claimant sustained a brachial plexus
injury as a result of the industrial
accident, and . . . this injury has reached
maximum medical improvement. 	The claimant's
injury occurred over four years ago. 	As of
December 16, 1994, Dr. [Kenneth R.] Zaslav
unequivocally opined that the claimant's
injury was permanent and required no further
treatment. 	Aside from treatments aimed at
pain control, no physician has made specific
suggestions that would indicate that the
brachial plexus lesion will improve.
Significantly, two physicians have assigned
permanent partial impairment ratings to the
claimant's right upper extremity. 	We
conclude that the ratings should be averaged
for a 33% permanent partial impairment
rating . . . .
In its role as fact finder, the commission was entitled to
accept Dr. Zaslav's opinions and to reject any contrary medical
evidence. 	Dr. Zaslav's opinion that claimant's compensable
injury had reached maximum medical improvement and his fifty
percent impairment rating, coupled with Dr. Stephen Leivobic's
sixteen percent impairment rating, constitute credible evidence
to support the commission's factual findings. 	Thus, those
findings are binding upon us on appeal. 	See id.

For these reasons, we affirm the commission's decision.

Affirmed.