                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Kelsey,∗ Alston and Senior Judge Bumgardner
UNPUBLISHED


              Argued at Alexandria, Virginia


              COURTNEY E. BLAKEY
                                                                            MEMORANDUM OPINION∗∗ BY
              v.     Record No. 0837-14-4                                   JUDGE ROSSIE D. ALSTON, JR.
                                                                                FEBRUARY 18, 2015
              UNIVERISTY OF VIRGINIA HEALTH SYSTEM/
               COMMONWEALTH OF VIRGINIA


                           FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Benjamin J. Trichilo (McCandlish Lillard, PC, on briefs), for
                               appellant.

                               Ryan D. Doherty, Assistant Attorney General (Mark R. Herring,
                               Attorney General; Rhodes B. Ritenour, Deputy Attorney General;
                               Peter R. Messitt, Senior Assistant Attorney General, on brief), for
                               appellee.

                               Amicus Curiae: The Virginia Trial Lawyers Association (Diane
                               C.H. McNamara, on brief), for appellant.


                     Courtney E. Blakey (“claimant”) appeals a decision of the Workers’ Compensation

              Commission (“the commission”) awarding her permanent partial disability benefits based on a

              rating of a 43% loss of the use of her right upper extremity. On appeal in her five overlapping

              assignments of error, claimant contends that the commission erred by unreasonably disregarding

              the findings of claimant’s treating physician and the impairment rating provided by a physician

              who examined claimant and reviewed her medical history, while crediting an impairment rating

              provided by a physician who never examined claimant. Further, claimant argues that the


                     ∗
                       Justice Kelsey participated in the decision of this case prior to his investiture as a Justice
              of the Supreme Court of Virginia.

                     ∗∗
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
commission erred by holding that disability ratings are limited by specific medical schedules or

guides and by holding that pain is not an appropriate factor for consideration in the calculation of

disability ratings. We agree with claimant that the commission erred by disregarding the

overwhelming evidence from claimant’s treating doctors and adopting an impairment rating

unsupported by the evidence and provided by a physician who never examined claimant or her

medical records. Therefore, on this very fact-specific case, we reverse the commission’s

decision and remand the case back to the commission for findings consistent with this opinion.

                                           I. Background1

       On August 29, 2009, claimant, a licensed practical nurse (“LPN”) employed as a nursing

assistant for University of Virginia Health System (“employer”), sustained a work-related injury

to her right arm when her arm was caught and jerked while she was holding a stretcher that

collapsed with a patient on it. Claimant sought immediate medical attention and soon began

treating with Dr. Eberly, a neurologist. Dr. Eberly issued his report on April 16, 2012, in which

he stated that claimant had thoracic outlet syndrome. Electro Magnetic Imaging confirmed right

ulner neuropathy. Dr. Eberly’s findings noted that epidural steroid injections had proven

ineffective, that after her injury claimant regularly dropped objects with her right upper

extremity, and that she experienced paresthesias, dysthesias, and pain in the C7/T1 distributional

along the medial aspect of her right arm and forearm.

       On June 27, 2012, Dr. Phillips, an orthopaedic specialist, evaluated claimant and

prepared a report. Dr. Phillips’ report stated that claimant had reached maximum medical

improvement and that in his opinion, claimant had a 72% permanent partial disability rating of


       1
         As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
                                                 -2-
the right upper extremity. Specifically, Dr. Phillips calculated claimant’s impairment rating

based on the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment,

which factored in impairment ratings for flexion, abduction, adduction, and internal and external

rotation of the upper extremity, as well as strength loss and sensory deficits of the hand “which is

caused by, and a direct result of, the thoracic outlet syndrome which is basically an injury to the

nerves going to the upper extremity and affecting the region of the innervate, i.e., in particular

the examinee’s hand . . . .” Finally, Dr. Phillips factored in an additional 8% permanent partial

impairment each for the upper extremity and the hand “for pain, weakness, loss of function and

loss of endurance[.]”

       On September 4, 2012, Dr. Eberly confirmed with Managed Care Innovations, L.L.C.,

employer’s claims’ administrator, that he agreed with Dr. Phillips’ 72% impairment rating of

claimant’s right arm, stating that “I agree with [Dr. Phillips’] rating, she is unable to work

because of the injury.”

       At some point, apparently dissatisfied with the findings of Dr. Phillips, employer

requested that a specific health care provider, Dr. Thomas Scioscia, a medical director with

Managed Care Innovations, L.L.C., opine on whether he agreed with Dr. Phillips’ and

Dr. Eberly’s disability rating of 72%. The form employer submitted to Managed Care

Innovations requesting Dr. Scioscia’s opinion listed the phone numbers of claimant’s treating

physicians, Dr. Phillips and Dr. Eberly, and provided a three-paragraph summary of claimant’s

treatment. In response, under the “Medical Director’s Review and Findings Section,”

Dr. Scioscia without more, simply stated “Please see G2 chart. A max rating of 43% for [upper

extremity impairment] is reasonable, suggest IME or rating using 6th Edition of ‘The Guides.’”

Dr. Scioscia never examined claimant, reviewed her medical records or indicated that he

contacted claimant’s treating physicians.
                                                -3-
          Claimant filed her application for permanent partial disability benefits on July 16, 2012.2

Employer opposed the claim, arguing that claimant had not reached maximum medical

improvement and that Dr. Phillips’ rating was “defective” due to his alleged “double counting”

(for pain, loss of function, and loss of endurance, which employer contended was already

factored into the AMA Guides rating calculations). At the hearing before the deputy

commissioner on December 5, 2012, claimant testified that she drops things because her “grasp

is off,” her right extremity is cold, and she feels pain, “pin prickling,” and a “stabbing, jolting

type of feeling” through her body if someone touches her right upper extremity. During the day,

claimant has constant numbness and pain at a level of 7 out of 10. The evidence also indicated

that claimant’s mother moved in to assist her in 2009 due to concerns over the pain claimant was

experiencing and the side effects of medication she took.

          With respect to her post-injury employment, claimant testified that Dr. Eberly released

her to perform light-duty work on a trial basis in May 2012, and that she followed his

instructions and obtained a part-time job as a licensed nurse practitioner two days every other

weekend. Claimant also works two days a month as a secretary at a children’s hospital in D.C.

The job does not require claimant to do any lifting; she pushes a medication cart with her left

hand and has CNAs assist her with applying treatment to patients.

          Critical to performing her functions as a LPN, claimant stated that her injury has limited

her in her job duties and personally because she cannot carry heavy things or pick up her son.

Additionally, she had to go back to school to get her R.N. because of her physical limitations.

LPNs are generally required to be able to lift over 25 pounds, which claimant could do before her

injury.

          2
         Claimant previously filed her first claim for benefits on January 25, 2010, alleging injury
to her right shoulder, neck, and wrist and was awarded various periods of temporary total and
partial disability benefits.
                                                 -4-
       The deputy commissioner issued his opinion on December 19, 2012, awarding claimant

benefits based on a disability rating of 43% to the right upper extremity. The deputy

commissioner essentially discounted Dr. Eberly’s validation and endorsement of Dr. Phillips’

72% impairment rating, concluding that “[t]here is no indication Dr. Eberly provided his own

quantitative assessment to affirm the 72 percent impairment rating.” The deputy commissioner

also discounted Dr. Phillips’ 72% rating because he added an additional 8% impairment for

“pain, weakness, loss of function and loss of endurance . . . .” The deputy commissioner noted

“[t]hat is not allowed.” Finally, the deputy commissioner rejected Dr. Phillips’ rating because he

used “erroneous Virginia standards” based on tables in the AMA Guides the deputy

commissioner determined Dr. Phillips misapplied.

       On April 3, 2014, the commission issued its opinion affirming the deputy commissioner’s

ruling. Like the deputy commissioner, the commission questioned Dr. Phillips’ findings because

he increased claimant’s disability rating by considering pain, weakness, loss of function, and loss

of endurance. Additionally, the commission disapproved of Dr. Eberly’s note to employer

agreeing with Dr. Phillips’ 72% rating because “the only basis expressed by Dr. Eberly for his

agreement with Dr. Phillips’ rating was that the claimant had been unable to work as a result of

the injury” despite the fact that claimant had been working part time for about 19 months.

Therefore, the commission found that “[t]here is nothing in the record to indicate that

Dr. Eberly’s agreement with Dr. Phillips’ rating represented anything more than simply deferring

to Dr. Phillips on the issue. Accordingly, we grant little evidentiary value to Dr. Eberly’s

opinion[.]”

       Of significance is that the commission noted that Dr. Phillips’ evaluation did contain data

regarding the functionality of both body parts and that the medical history taken by him was

“complete and consistent with the other evidence in the record.” Remarkably, the commission
                                               -5-
found that it was proper for the deputy commissioner to consider Dr. Phillips’ opinion along with

employer’s medical evidence, to determine claimant’s impairment rating. However to this end,

the commission found that the data in Dr. Phillips’ evaluation was “sufficient to allow

Dr. Thomas Scioscia . . . to calculate a permanent impairment rating of 43 percent.” The

commission noted that the deputy commissioner was not required to discount Dr. Scioscia’s

rating because he did not personally examine claimant and that “[i]n light of Dr. Phillips’

problematic calculation of the claimant’s level of impairment, the [d]eputy [c]omission[er] was

free to find the 43 percent disability rating assigned by Dr. Scioscia to be more credible than that

offered by Dr. Phillips.” Therefore, the commission affirmed the deputy commissioner’s award

based on a 43% impairment rating of claimant’s upper right extremity. This appeal followed.

                                             II. Analysis

        The fundamental purpose of the Workers’ Compensation Act (the “Act”) is to

compensate employees for injuries “arising out of and in the course of employment . . . without

regard to fault.” Lawrence J. Pascal, Virginia Workers’ Compensation: Law & Practice § 1.03

(4th ed. 2011). “It is as essential to industry as it is to labor.” Id. (quoting Feitig v. Chalkley,

185 Va. 96, 38 S.E.2d 73 (1946)). “‘Under well recognized principles governing the standard of

review on appeal, we must affirm the commission’s judgment awarding [permanent partial

disability] if those findings are supported by credible evidence in the record, regardless of

whether contrary evidence exists or contrary inferences may be drawn.’” United Airlines, Inc. v.

Sabol, 47 Va. App. 495, 500, 624 S.E.2d 692, 694 (2006) (quoting Rusty’s Welding Service, Inc.

v. Gibson, 29 Va. App. 119, 131, 510 S.E.2d 255, 261 (1999)). “‘In determining whether

credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance

of the evidence, or make its own determination of the credibility of the witnesses.’” Id. at 501,

624 S.E.2d at 694 (quoting Pruden v. Plasser American Corp., 45 Va. App. 566, 574-75, 612
                                                 -6-
S.E.2d 738, 742 (2005)). “If the Commission’s findings of fact are not based on credible

evidence, ‘its findings are not binding and the question presented becomes one of law.’” Ford

Motor Co. v. Favinger, 275 Va. 83, 88, 654 S.E.2d 575, 578 (2008) (quoting Great Atlantic &

Pacific Tea Co. v. Robertson, 218 Va. 1051, 1053, 243 S.E.2d 234, 235 (1978)).

       “[T]o obtain benefits under Code § 65.2-503 for the loss of use of a particular body

member, the claimant must establish that he has achieved maximum medical improvement and

that his functional loss of capacity be quantified or rated.” Cafaro Constr. Co. v. Strother, 15

Va. App. 656, 661, 426 S.E.2d 489, 492 (1993) (citing Hungerford Mechanical Corp. v. Hobson,

11 Va. App. 675, 401 S.E.2d 213 (1991)). “The commission, in determining permanent partial

disability benefits, must rate claimant’s percentage of incapacity based on the evidence presented

to it. In doing so, it gives great weight to the treating physician’s opinion.” Sabol, 47 Va. App.

at 501, 624 S.E.2d at 695 (citations omitted). Though not binding on this Court, we agree with

the commission’s acknowledgement and stated policy that

               In determining the extent of permanent loss of use of a member,
               the Commission has followed precedent and stated as policy that is
               it [sic] not held to anatomical loss determinations by one or more
               physicians nor is it limited by specific loss schedules or by various
               published guides which determine incapacity on the basis of a
               percent of motion or function of a member. Rather, the
               Commission may consider the nature of disability, the
               circumstances under which a member’s use would be permanently
               affected, alternate use of a member in other employments for
               which the claimant may be qualified, the effect of pain on use
               capacity, and such pertinent considerations as would permit the
               Commission to make a reasonable determination of permanent loss
               or loss of use in each case.

Rivera v. Ford Motor Co., VWC File No. 216-39-16 (Va. Workers’ Comp. Comm’n July 12,

2006) (citations omitted).

       Acknowledging the legal standards controlling our consideration of the factual

underpinnings of this matter, we hold that in the unique circumstances presented herein, because
                                                -7-
the commission’s findings of fact are not based on credible evidence, the commission’s findings

are not binding on this Court and the question presented before us thus becomes one of law.

Because the commission’s award of a 43% rating was based solely and simply on Dr. Scioscia’s

note, which under these very particularized facts falls far short of being credible evidence, the

commission erred in awarding benefits based on a 43% impairment rating. See Favinger, 275

Va. at 88, 654 S.E.2d at 578 (“If the [c]ommission’s findings of fact are not based on credible

evidence, ‘its findings are not binding and the question presented becomes one of law.’” (quoting

Great Atlantic & Pacific Tea Co., 218 Va. at 1053, 243 S.E.2d at 235)). Though great deference

is merited and indeed given to the commission in weighing and determining the credibility of the

evidence, in this case, Dr. Scioscia’s 43% “rating” was simply not sufficient to merit the great

deference traditionally warranted.

       To begin with, Dr. Scioscia never examined the claimant or reviewed her medical

records. In fact, the only information related to claimant’s injury given to Dr. Scioscia was a

two-paragraph summary of treatment, presumably completed by someone at Managed Care

Innovations, L.L.C., and Dr. Phillips’ report. Additionally, Dr. Scioscia’s note does not reflect

that he ever contacted either of claimant’s treating physicians or reviewed their records. Further

and most importantly, Dr. Scioscia’s note did not provide an actual impairment rating for

claimant’s right upper extremity. His note specifically stated that a “max rating of 43% for the

UEI is reasonable” but he goes on to recommend an IME “or rating using 6th Edition of ‘The

Guides.’” Indeed under these facts, Dr. Scioscia was virtually incapable of calculating an

impairment rating himself because he had wholly insufficient information from which to

calculate an impairment rating. Rather, he merely opined that he thought Dr. Phillips’ rating was

higher than reasonable, that the concurring endorsement of that finding was not tenable, and that

employer should consider having claimant undergo an IME with a doctor who could then
                                                -8-
calculate an impairment rating using the Sixth Edition of the AMA Guides. Dr. Scioscia’s note

was not a report; it was not based on any level of sufficient knowledge of claimant’s injury, had

no basis in fact, and did not provide a rating to any degree of medical certainty. Therefore, it

was wholly insufficient evidence on which to base an award.

       There is no dispute with the general analytical framework professed by the dissent. With

all due respect, the dissent spends much of its analysis discrediting Dr. Eberly’s and Dr. Phillips’

opinions and in its efforts to do so, acknowledges the principles that when an expert’s rating

“flows from an assumption that rests upon a faulty premise, . . . the commission may refuse, and

often will be required to refuse, to attribute any weight to that opinion.” Sneed v. Morengo, Inc.,

19 Va. App. 199, 205, 450 S.E.2d 167, 171 (1994) (citing Clinchfield Coal Co. v. Bowman, 229

Va. 249, 252, 329 S.E.2d 15, 16 (1985)). And, even though “a treating physician’s opinion

normally is given great weight, such an opinion is not conclusive, especially when the opinion is

not accompanied by any reasoning or explanation.” Thompson v. Brenco, Inc., 38 Va. App.

617, 623, 567 S.E.2d 580, 583 (2002) (emphasis added). The distinct problem in the instant

matter is that Dr. Scioscia’s note rests upon no premise whatsoever as he did not provide an

actual rating and did not provide any opinion of claimant’s disability to any degree of medical

certainty. Dr. Scioscia’s note, even if it could be called an impairment rating, was merely based

on Dr. Scioscia’s review of employer’s brief summary of claimant’s injuries as he neither

reviewed any medical records nor spoke to claimant’s treating physician. The commission may

take issue with Dr. Phillips’ methodology or the perceived brevity of Dr. Eberly’s concurrence

with Dr. Phillips’ opinion, however it cannot ignore that both were based on full reviews of

medical records and examinations of claimant whereas Dr. Scioscia did not provide a disability

rating and his “opinion” that a maximum 43% rating would be “reasonable” was “not

accompanied by any reasoning or explanation.” Id. “‘A medical opinion based upon a
                                                -9-
‘possibility’ is irrelevant, purely speculative and hence, inadmissible.’” Farmington Country

Club, Inc. v. Marshall, 47 Va. App. 15, 28, 622 S.E.2d 233, 240 (2005) (quoting Spruill v.

Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980)). Dr. Scioscia’s conclusory note,

unlike Dr. Phillips’ full report and Dr. Eberly’s assessment and concurring opinion, merely

speculated that an independent medical exam and rating based on the Sixth Edition to the AMA

Guides would yield a maximum reasonable disability rating of 43%. He did not calculate that

rating himself or base it on anything other than a two-paragraph summary of claimant’s injuries

provided by employer. Therefore, Dr. Scioscia’s note was not credible evidence upon which an

award should have been based.

       Absent Dr. Scioscia’s note, the only evidence before the commission supported a 72%

impairment rating – Dr. Phillips’ impairment rating and a concurrence from claimant’s treating

physician, Dr. Eberly. The commission partially discredited the value of Dr. Phillips’ rating

because he factored in additional impairment for “pain, weakness, loss of use in addition to

impairment” and because he based his impairment rating on an alleged misinterpretation of

tables in the Fifth Edition of the AMA Guides. This was also error. Neither a physician nor the

commission is limited to specific guides or tables when determining an impairment rating. See

Rivera, VWC File No. 216-39-16 (Va. Workers’ Comp. Comm’n July 12, 2006). Further, pain

while not compensable, is ratable. While “pain alone is not compensable[,] . . . common sense,

logic, and medical opinion dictate that pain can, at times, impair function and result in

disability.” Lynchburg Foundry Co. v. Tucker, No. 2251-91-3 (Va. Ct. App. Sept. 29, 1992) (per

curiam).3



       3
          “Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3, 735 S.E.2d 255, 257
n.3 (2012) (citing Rule 5A:1(f)).
                                             - 10 -
        Dr. Phillips based his rating on consultation with recognized medical guides as well as

his assessment of other factors affecting claimant’s continued, legitimate, and severe disability,

such as pain, loss of use, and endurance. To that end, it is important to note that there was no

dispute in this case over whether claimant suffered an injury, the severity of that injury, the

appropriateness of the jobs she currently works, nor were there any allegations of malingering.

In fact, despite Dr. Scioscia’s recommendation, employer never requested an independent

medical exam or impairment rating of claimant. Given the evidence supporting Dr. Phillips’

impairment rating, we hold that it was error for the commission to discredit Dr. Phillips’ rating

for the reasons that it did.

        Moreover, the commission erred by discrediting Dr. Eberly’s opinion on Dr. Phillips’

impairment rating because “the only basis expressed by Dr. Eberly for his agreement with

Dr. Phillips’ rating was that the claimant had been unable to work as a result of the injury.” To

the contrary, the record showed that claimant had been working part time for about 19 months,

pursuant to instructions from Dr. Eberly. In addition, Dr. Eberly had been claimant’s treating

physician since 2009. He approved her release to light-duty work on a trial basis as of May

2012. Travelling miles to different work opportunities and oftentimes living in hotels, claimant

was only working six days a month at the time of the hearing. The history relied upon by

Dr. Phillips in determining his impairment rating included Dr. Eberly’s records. Certainly

Dr. Eberly’s status as claimant’s treating physician and familiarity with the history of her injury

and return to work rendered him well-equipped to opine on an impairment rating for her arm.

See Sabol, 47 Va. App. at 501, 624 S.E.2d at 695 (noting that in rating claimant’s percentage of

incapacity based on the evidence presented to the commission, the commission “gives great

weight to the treating physician’s opinion”). Standing in contrast to Dr. Scioscia’s conclusory

remark bereft of any factual findings, Dr. Eberly objectively stated that he agreed with
                                               - 11 -
Dr. Phillips’ impairment rating and agreed that claimant could not work. Even once released to

light-duty work, claimant’s two positions combined only amounted to six days a month

employment. Given Dr. Eberly’s history and familiarity with claimant and her injury, and the

fact that he was only asked to opine on the impairment rating and not calculate or provide a basis

for his own, there was no reason for the commission to arbitrarily discredit Dr. Eberly’s opinion.

       For these reasons we hold that there was no credible evidence in the record to support the

commission’s award of benefits based on a 43% impairment rating of claimant’s upper extremity

and remand this case to the commission for disposition consistent with this opinion.

                                                                         Reversed and remanded.




                                              - 12 -
Kelsey, J., dissenting.

          In this case, the claimant’s counsel hired an expert witness to give a medical opinion on

the extent of the claimant’s disability. After seeing the claimant one time and after expressly

disclaiming any physician-patient relationship, the hired expert concluded that the claimant

should be given a 72% permanent partial disability (PPD) rating. That conclusion was then

presented to the claimant’s treating physician in a form letter. The treating physician scrawled

on the form that he agreed with the PPD rating.

          No evidence suggested that the treating physician read the hired expert’s report. Nor

does the record suggest that the treating physician performed any independent analysis of the

many variables that go into calculating a disability rating (or, for that matter, that he even knew

the correct name of the expert). To make matters worse, the treating physician adopted the hired

expert’s PPD rating, based on the mistaken assertion that the claimant was unable to work

because of the accident even though, in fact, she had been working in a limited capacity for over

a year.

          The claimant argues on appeal that the law compels the commission, sitting as factfinder,

to accept her hired expert’s “uncontested” opinion. See, e.g., Appellant’s Br. at 14, 16; Oral

Argument Audio at 07:20 to 07:26. I disagree. Under settled principles, the claimant had the

burden of proof to establish by a preponderance of the evidence the extent, if any, that she was

disabled as a result of her accident. The evidence she presented was arguably sufficient, though

barely so, for the commission to accept the expert’s 72% PPD rating. Sitting as factfinder,

however, the commission was understandably not persuaded. The commission found serious

flaws in the hired expert’s analysis and determined that the treating physician hurriedly deferred

to this flawed analysis without any independent analysis.



                                                 - 13 -
       It is thus an overstatement, at best, for the claimant to assert that no rational factfinder

could be unpersuaded by the hired expert’s PPD rating. Aware of this, the claimant does what

many litigants do when faced with an apparently insurmountable hurdle — she changes the

subject from the only relevant issue to a wholly irrelevant one by challenging the evidentiary

basis for the commission’s decision to award her the lower 43% PPD rating. This contention is

emotively appealing but conceptually flawed because, if it were true, she would get nothing.

       The question in this case is not whether the lesser award should be vacated as factually

insupportable (a remedy the employer does not seek on appeal) but whether the commission

could rationally find that the preponderance of the evidence did not support the higher award.

By incorrectly framing the debate in this manner, the claimant has given an arguably correct

answer to an indisputably wrong question. It is irrelevant whether “the commission erred in

awarding benefits based on a 43% impairment rating.” Supra at 8. The only issue we must

decide is whether the commission erred in rejecting as factually unpersuasive the 72% PPD

rating advocated by the claimant’s hired expert. For the following reasons, I believe the

commission did not err in doing so.

                                                  I.
                             A. APPELLATE STANDARD OF REVIEW

       On appeal, we review de novo the commission’s legal conclusions. “In contrast, we

review questions of fact under the highest level of appellate deference.” Thorpe v. Clary, 57

Va. App. 617, 623, 704 S.E.2d 611, 614 (2011), aff’d sub nom. Thorpe v. Ted Bowling Constr.,

283 Va. 808, 724 S.E.2d 728 (2012). “By statute, we treat the commission’s factfinding as

‘conclusive and binding’ if it rests on a sufficient threshold of evidence.” Id. (quoting Berglund

Chevrolet, Inc. v. Landrum, 43 Va. App. 742, 749-50, 601 S.E.2d 693, 697 (2004)). “This



                                                - 14 -
appellate deference is not a mere legal custom, subject to a flexible application, but a statutory

command that binds us so long as a rational mind upon consideration of all the circumstances

could come to the conclusion the commission adopted.” Id. (citation and internal quotation

marks omitted).

       “Because we do not judge the credibility of witnesses or weigh the evidence on appeal,

our personal view of the underlying factual debate plays no role in the task of appellate review.”

Id. (quoting Clifton v. Clifton Cable Contracting, LLC, 54 Va. App. 532, 541 n.2, 680 S.E.2d

348, 353 n.2 (2009)). “It thus makes no difference that we would have decided the facts

differently, because the statute authorizes the commission to adopt whatever view of the

evidence it considers most consistent with reason and justice.” Id. at 623-24, 704 S.E.2d at 614

(citations, brackets, and internal quotation marks omitted).

                      B. THE PERMANENT DISABILITY FACTUAL FINDING

       The claimant bore “the burden of proving [her] disability and the periods of that

disability.” Donovan v. United Parcel Service, Inc., 63 Va. App. 438, 445, 758 S.E.2d 99, 102

(2014) (quoting Marshall Erdman & Assocs. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145,

149-50 (1997)). Attempting to shoulder that burden, the claimant’s counsel hired Dr. Jeffrey

Phillips, an orthopedist, to provide a written expert opinion concerning the extent of the

claimant’s disability. App. at 107-09, 226-28. Dr. Phillips saw the claimant on one occasion for

this purpose and clearly documented that “no doctor/patient relationship was established”

between them. Id. at 107. He opined that the claimant suffered a 72% PPD rating affecting her

upper right extremity. Dr. Phillips based this opinion on his interpretation of various provisions

of the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment (“AMA

Guides”).


                                               - 15 -
       The claimant’s treating physician, Dr. Lewis Eberly, was later given a form letter

advising him that “Dr. Phillip Green” had provided an expert report opining a 72% PPD rating.

Id. at 104, 231. The form asked whether Dr. Eberly agreed with the rating and specifically

asked, “Why or why not?” Id. In reply, Dr. Eberly made a two-sentence handwritten note on the

form stating: “I agree with this rating. She is unable to work because of the injury.” Id.

Dr. Eberly was apparently unaware that “Dr. Phillip Green” did not exist (the report was issued

by Dr. Jeffrey Phillips)4 and indicated as the basis for his agreement that the claimant was unable

to work when she had already returned to work in a limited capacity. Dr. Eberly also made no

effort to explain whether he had independently calculated the 72% PPD rating and, if so, what

combination of variables justified the rating.

       The employer’s claims administrator then asked Dr. Thomas Scioscia to review

Dr. Phillips’s independent medical evaluation (IME) report and offer an expert opinion on the

disability rating that he had assigned. Dr. Scioscia reviewed Dr. Phillips’s findings. Disagreeing

with the 72% PPD rating opined by Dr. Phillips, Dr. Scioscia concluded that a “max rating of

43%” was reasonable. Id. at 233. He added that an IME or PPD rating should be based on the

more up-to-date “6th Edition of ‘The [AMA] Guides.’” Id.

       The claimant filed a petition seeking a 72% PPD rating for her upper right extremity.

The claimant did not call Dr. Phillips as a witness and instead relied solely on his written report.

The deputy commissioner rejected the hired expert’s opinion, reviewed the extensive written

medical record, and found that the evidence supported only a 43% PPD rating. See id. at 245.

Both the claimant and the employer requested review by the full commission. The claimant




       4
         The form mistakenly referred to Dr. Jeffrey Phillips, with the medical partnership of
Phillips & Green, M.D., as “Dr. Phillip Green.” See App. at 104, 231.
                                              - 16 -
argued for a 72% PPD rating, as suggested by Dr. Phillips, while the employer contended that

the medical evidence justified a 14% PPD rating, not the “max rating” of 43% suggested by

Dr. Scioscia. Id. at 233.

        On review, the full commission disagreed with both parties and agreed with the deputy

commissioner. The commission’s analysis began with Dr. Eberly, the only treating physician

who had said anything about the claimant’s PPD rating. The form request asked him if he agreed

with the 72% PPD rating and, if so, to explain the basis for his opinion. The commission was

struck by the fact that Dr. Eberly, while offering no explanation of any kind, simply jotted down

a handwritten statement saying that he agreed with the rating. Dr. Eberly presented no

independent analysis of either the claimant’s disability or Dr. Phillips’s application of the AMA

Guides. Nothing in the record, the commission observed, suggested that Dr. Eberly had

reviewed the “examination report” of Dr. Phillips or “that he performed any calculation or

analysis in arriving at his opinion.” Blakey v. Univ. of Va. Health Sys., 2014 Va. Wrk. Comp.

LEXIS 100 (Apr. 3, 2014).

        Furthermore, the commission noted, the “only basis expressed by Dr. Eberly” for

agreeing with the 72% PPD rating “was that the claimant had been unable to work as a result of

the injury.” Id. But that premise was mistaken because the claimant “in fact had been working

for approximately 19 months.” Id. In sum, the commission concluded: “There is nothing in the

record to indicate that Dr. Eberly’s agreement with Dr. Phillips’ rating represented anything

more than simply deferring to Dr. Phillips on the issue. Accordingly, we grant little evidentiary

value to Dr. Eberly’s opinion . . . .” Id.

        The commission also found fault with the disability rating methodology used by

Dr. Phillips. He had added an “additional rating for pain, weakness, loss of function and loss of



                                              - 17 -
endurance” based upon “Chapter 18 of the 5th edition of the AMA Guides.” Id. (brackets

omitted). That chapter, however, specifically disclaims any attempt at measuring impairment

caused by pain and weakness. Id. (quoting AMA Guides to the Evaluation of Permanent

Impairment § 18.3b, p. 571 (5th ed. 2000)). When the commission consulted the correct portion

of the AMA Guides, it found that a “‘formal pain-related impairment assessment’” should be

performed to measure accurately this component of the impairment rating. Id. (quoting AMA

Guides § 18.3d, p. 573). Dr. Phillips never performed this formal assessment.

       Perplexed by these inconsistencies, the commission explained in detail why it discounted

the hired expert’s opinion:

             [T]he AMA Guides instruct an examiner to include pain-related
             impairment, if found, in the overall impairment rating determined by
             the body or organ rating system. The examiner is not instructed, as
             Dr. Phillips did, to provide separate ratings for pain and loss of use in
             addition to impairment. Furthermore, Dr. Phillips did not explain
             why loss of function caused by pain could not be assessed through the
             body rating system provided in the AMA Guides, nor did he classify
             the claimant’s pain-related impairment or indicate whether it was
             ratable or unratable. While pain that results in “permanent partial” or
             “permanent total loss” is compensable, the Act does not compensate
             for pain alone.

             Even if the claimant’s pain caused some additional loss of use in this
             case, it is impossible to calculate the additional percentage to which
             she would be entitled. The reason for this is that Dr. Phillips gave the
             claimant an additional rating of eight percent impairment for the total
             of four different conditions, specifically pain, weakness, loss of
             function and loss of endurance, without indicating the percentage
             attributable to each of the four factors. Since Dr. Phillips did not
             break out from the eight percent the amount of loss of function, if any,
             caused by pain, versus the amount of the eight percent attributable to
             the other conditions, we have no basis for doing so. More
             problematic is Dr. Phillips’ inclusion of loss of function in the
             additional eight percent, since the very purpose of the initial base
             impairment rating was to address the loss of function. Thus it would
             appear that any additional amount included in the eight percent for
             loss of function would be duplicative as it would be included in the



                                              - 18 -
              base rating. The burden was on the claimant to prove the extent of
              her impairment, and since Dr. Phillips did not indicate that the
              claimant’s pain caused a loss of function, did not explain how his
              additional loss of function impairment was not duplicative, and did
              not break out how much the additional eight percent was attributable
              to each of the four factors he identified, the claimant has failed to
              prove entitlement to the additional eight percent or to any lesser
              additional amount.

Id. (citation omitted).

        The deputy commissioner had also discounted the PPD rating offered by Dr. Phillips

based on the commission’s previous experience with him.5 In Henderson v. Coffeewood Corr.

Ctr., 2007 Va. Wrk. Comp. LEXIS 493 (Aug. 13, 2007), the commission rejected a rating

Dr. Phillips had assigned to a different claimant because of similarly defective methodology.

App. at 244. In that case, Dr. Phillips had “enhanced his rating by 6 percent, ‘because of pain,

loss of function, and loss of endurance,’” but, as the deputy commissioner noted, “[i]t is

improper to separately rate these items. While pain and loss of function may be considered to

the extent that they inhibit function, they are not separately rated.” Henderson, 2007 Va. Wrk.

Comp. LEXIS 493, at *14.

        In addition, the commission distinguished between a physical “impairment” (as the

medical community uses the term) and a statutory “disability” (as Code § 65.2-503(A) & (D)

uses the term). Correctly applying this distinction, the commission explained:



        5
         The commission adopted “as its own” the “Deputy Commissioner’s summary of the
evidence,” id. at 273, as well as “the Deputy Commissioner’s reasoning and analysis regarding
the weight of the evidence in the record,” id. at 278, which included extensive medical evidence.
The deputy commissioner’s summary of the evidence not only considered the testimony by the
claimant, but the summary began with the words: “The claimant testified . . . .” Id. at 241. The
summary thus not only considered the claimant’s testimony but framed the injurious event and
the claimant’s subsequent impairment on the basis of her testimony. Id. This is contrary to
assertions by the claimant on appeal that the commission failed to consider or outright
disregarded testimony by the claimant and her mother. See, e.g., Appellant’s Br. at 1, 2, 6, 14;
see also Amicus Br. at 22, 23, 36.
                                                - 19 -
             The AMA Guides define impairment as “a loss, loss of use, or
             derangement of any body part, organ system or organ function.” Id.
             at 2. Thus “impairment” as used in the AMA Guides is
             interchangeable with “loss” or “loss of use” as used in § 65.2-503.
             While the degree of impairment is to be considered in determining
             disability under the AMA Guides, the other factors relating to
             disability do not influence the impairment rating. “An impaired
             individual may or may not have a disability.” Id. at 3, Table 1-1. It is
             “impairment” as defined by the AMA Guides which equates to the
             “loss” or “loss of the use” for which benefits are awarded under Va.
             Code § 65.2-503, not a claimant’s “disability,” “incapacity for work”
             or loss of wages. Compare AMA Guides, Section 1.2b, p. 8 with Va.
             Code § 65.2-503(A) & (D).

             Since it is compensation for the loss or loss of use of a body part that
             is awarded pursuant to § 65.2-503, not the claimant’s resulting
             inability to meet “personal, social, or occupational demands,” the
             statute does not implicate the social and economic factors identified in
             the dissent and represented by the AMA Guides’ definition for
             “disability”. While a claimant may receive benefits for either total or
             partial incapacity for work caused by a compensable injury, such
             benefits are available under §§ 65.2-500 or 65.2-502 and not under
             § 65.2-503. “Benefits awarded under Code § 65.2-503 constitute
             indemnity for the loss of or loss of use of a scheduled body member.
             Such benefits are not awarded for loss of earning capacity, as are
             benefits provided for under Code § 65.2-500.” Cross v. Newport
             News Shipbuilding & Dry Dock Co., 21 Va. App. 530, 535, 465
             S.E.2d 598, 600 (1996) (citing Williams, 1 Va. App. at 404, 339
             S.E.2d at 554)). See also LesCallett v. Rozansky & Kay Constr. Co.,
             23 Va. App. 404, 406, 477 S.E.2d 746, 747-48 (1996) (“Proof of the
             functional loss of the member, not industrial incapacity, is required
             for an award of benefits under Code § 65.2-503.”). Indeed, the
             claimant in the present case is receiving benefits under § 65.2-502 for
             loss of earning capacity, and has been receiving such benefits since
             February 22, 2011.

Blakey, 2014 Va. Wrk. Comp. LEXIS 100 (emphasis added).

       The factual basis underlying these findings cannot be dismissed as arbitrary or irrational.

Whether we would have reached the same decision if we were the factfinder is inconsequential.

We have neither the institutional authority nor the professional competence to second-guess the

commission on fact-intensive judgment calls. It bears repeating: “A finding of fact made by the



                                              - 20 -
Commission, based on evidence deemed by it to be credible, is conclusive and binding on us and

in the absence of fraud is not subject to review.” Williams v. Fuqua, 199 Va. 709, 713, 101

S.E.2d 562, 566 (1958) (emphasis added).

        The only question we must ask is whether, applying “the highest level of appellate

deference,” we can justifiably disregard the statutory command to treat the commission’s

factfinding as “conclusive and binding.” Thorpe, 57 Va. App. at 623, 704 S.E.2d at 614 (internal

quotation marks omitted). Whatever that basis might be, it cannot simply rest on our view of the

“credibility of witnesses” or the “weigh[t] [of] the evidence” because “our personal view of the

underlying factual debate plays no role in the task of appellate review.” Id. (internal quotation

marks omitted).

        The claimant acknowledges these principles but nonetheless points out, quite correctly,

that we do not (and should not) defer to factfinders that predicate their findings on erroneous

legal principles. In her multiple assignments of error, the claimant identifies two principles of

law that the commission allegedly violated: First, a factfinder may attribute “great weight” to the

medical opinions of a treating physician. Supra at 7; see also Appellant’s Br. at 2-3. Second, the

commission’s PPD rating should not be a mechanical application of the AMA Guides. Supra at

1-2; see also Appellant’s Br. at 3. Neither of these legal errors infects the commission’s

factfinding in this case.

        With respect to the claimant’s first point, it is true the commission could have attributed

great weight to the treating physician’s two-sentence, handwritten notation (even though based

upon a mistaken assertion of unemployment) that stated he agreed with the hired expert’s PPD

rating. But the commission, sitting as factfinder, chose not to do so — something every Virginia




                                               - 21 -
case mentioning the treating-physician preference acknowledges as appropriate.6 It is easy to see

why the commission came to this conclusion. When an expert’s rating “flows from an

assumption that rests upon a faulty premise, . . . the commission may refuse, and often will be

required to refuse, to attribute any weight to that opinion.” Sneed v. Morengo, Inc., 19 Va. App.

199, 205, 450 S.E.2d 167, 171 (1994) (citing Clinchfield Coal Co. v. Bowman, 229 Va. 249,

252, 329 S.E.2d 15, 16 (1985)). And, even though “a treating physician’s opinion normally is

given great weight, such an opinion is not conclusive, especially when the opinion is not

accompanied by any reasoning or explanation.” Thompson v. Brenco, Inc., 38 Va. App. 617,

623, 567 S.E.2d 580, 583 (2002) (emphasis added)). Both of these flaws damaged the credibility

of the treating physician’s opinion in this case.7

       The cases cited by the claimant demonstrate how these principles work. Not one of them

involves an appellate reversal of the commission’s denial of benefits coupled with an order




       6
          We have repeatedly emphasized that the treating-physician preference is not
“necessarily conclusive,” Berglund Chevrolet, 43 Va. App. at 753 n.4, 601 S.E.2d at 698 n.4, and
is always “subject to the commission’s consideration and weighing,” H. J. Holz & Son v.
Dumas-Thayer, 37 Va. App. 645, 655, 561 S.E.2d 6, 11 (2002) (quoting Hungerford Mech.
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991)). Accord 1 Arthur Larson
& Lex K. Larson, Larson’s Workers’ Compensation Law § 130.05 (Matthew Bender, rev. ed.
2014) (“If the Commission chooses to believe one doctor whose opinion as to . . . the extent or
duration of the claimant’s disability is contradicted by that of another — or even of six or seven
or ten others — the court has no power to reverse its determination. This is true even if the
minority doctor bases his or her opinion on a theory that is not accepted as sound by the majority
of the medical profession. Although this theory is novel, unpopular, or iconoclastic, the
probative force of the testimony is for the trier of fact, and is reviewable only for manifest
error.”).
       7
         “With all due respect,” the majority contends, “the dissent spends much of its analysis
discrediting Dr. Eberly’s and Dr. Phillips’ opinions . . . .” Supra at 9. Not so. It was the
commission — the factfinder in this case — that discredited these opinions. I merely defer to the
commission’s factfinding on these issues and restate the factual record in the light most favorable
to the employer, the party that prevailed before the commission. The governing standard of
appellate review requires no less.
                                               - 22 -
directing the commission to grant benefits — which could occur only in situations in which the

treating physician’s opinion was so irrefutable that no rational factfinder could find it

unpersuasive.8 The claimant instead relies only on cases in which the commission had granted

benefits, and we or the Virginia Supreme Court rejected the employer’s argument on appeal that

the evidence from the treating physician failed to make a prima facie showing sufficient to

support the award.

         With respect to the claimant’s second point, I agree that the commission cannot simply

adopt the AMA Guides as a thoughtless substitute for the arduous task of weighing the evidence

as a whole and coming to a reasoned decision on the permanent, partial disability rating. The

commission, however, expressly acknowledged that it is not “limited by specific loss schedules

or by the various published guides which determine incapacity,” Blakey, 2014 Va. Wrk. Comp.

LEXIS 100 (internal quotation marks omitted), or in any way required to base a PPD rating “on a

formal guide such as the AMA Guides,” id. (text in parenthetical to case citation).

         To be sure, the only reason that the commission even addressed the AMA Guides is

because the claimant’s hired expert relied exclusively upon them. As the commission made

clear:




         8
          Factually sufficient findings (usually called a prima facie case) must be distinguished
from legally incontestable findings (those an appellate court says that no rational factfinder could
ignore). A prima facie case is the threshold level of evidentiary proof that is sufficient to permit
a factfinder, if he is so persuaded, to grant the relief requested. Nothing in the concept of a
prima facie case, however, requires that the factfinder actually be persuaded. In logical as well
as legal terms, a prima facie case sets out a sufficient premise, but not a necessary one — that is,
a plausible understanding of the evidence that the factfinder can accept, but not one that he must
accept. See generally Cent. Va. Obstetrics & Gynecology Assocs. v. Whitfield, 42 Va. App.
264, 274-76, 590 S.E.2d 631, 637-38 (2004); Charles E. Friend & Kent Sinclair, The Law of
Evidence in Virginia § 4-4, at 218 (7th ed. 2012); 9 John H. Wigmore, Evidence § 2494, at
378-80 (Chadbourne rev. 1981) (footnotes omitted).

                                                - 23 -
               We agree that we are not bound by the AMA Guides in
               determining the degree of permanent impairment sustained by a
               claimant. However, Dr. Phillips indicates in his report that he
               based his rating upon the AMA Guides. Accordingly, in order to
               determine the weight to give to his rating, we must evaluate the
               rating in light of the AMA Guides.

Id. For these reasons, the commission cannot be faulted for considering the AMA Guides in the

context of this case.

                                                 II.

       In sum, the claimant asks us to reweigh the medical record, to find by a preponderance of

the evidence that her hired expert’s opinion is legally incontrovertible, and to order the

commission to make a permanent, partial disability award based upon the expert’s 72% PPD

rating. I see no legal basis for granting any of these requests.

       I thus respectfully dissent.




                                                - 24 -
