                     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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