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. 
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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.