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. 
 2 

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.