Earl R. Toombs, VA Forestry v. Raymond Smith

• Court: Court of Appeals of Virginia
• Decided: November 9, 1999
• Docket: 0109992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Senior Judge Hodges Argued at Richmond, Virginia

EARL R. TOOMBS AND VIRGINIA FORESTRY GROUP SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION* BY v. Record No. 0109-99-2 JUDGE ROBERT P. FRANK NOVEMBER 9, 1999 RAYMOND SMITH

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Andrew R. Blair (Andrew R. Blair, A Professional Corporation, on brief), for appellant.

George H. Bagwell (Bagwell & Bagwell, P.C., on brief), for appellee.

Earl R. Toombs and Virginia Forestry Group Self-Insurance

Association (appellants) appeal the Workers' Compensation

Commission's (commission) award of permanent total disability

benefits to Raymond Smith (claimant). Appellants argue 1) the

commission erred in failing to consider the potential impact of

future vocational rehabilitation and 2) there was not credible

evidence to support the award of permanent total disability

benefits. Finding appellants' arguments unpersuasive, we affirm

the commission's decision.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I. PROCEDURAL BACKGROUND

Claimant was employed as a truck driver by appellant

Earl R. Toombs when he was injured in a work-related accident on

July 16, 1985. Claimant suffered injuries to his brain and

shoulder when a log rolled from a truck and struck him.

Pursuant to a Memorandum of Agreement, claimant received

temporary total disability benefits in the weekly amount of

$121.03 from July 24, 1985 through February 21, 1995, when the

500-week maximum was reached. On July 16, 1996, claimant filed

a claim for permanent total disability benefits. The deputy

commissioner denied the claim for permanent total disability

benefits. The commission reversed the deputy commissioner's

decision and awarded claimant permanent total disability

benefits.

II. ANALYSIS

Appellants challenge the commission's award of permanent

total disability benefits on the basis that 1) the commission

failed to consider the potential impact of a future vocational

rehabilitation program 1 and 2) there was not credible evidence to

support the commission's award. We find appellants' arguments

without merit, and affirm the commission's decision.

1 While appellants briefed the issue of permanent unemployability under former Code § 65.1-56(18) and Barnett v. Bromwell, 6 Va. App. 30, 366 S.E.2d 271 (1986) (en banc), we do not reach this issue because it was not included in appellants' Questions Presented. See Rule 5A:20(c)-(e).

- 2 - "'Factual findings of the [Workers' Compensation]

Commission will be upheld on appeal if supported by credible

evidence.'" Tumlin v. Goodyear Tire & Rubber, 18 Va. App. 375,

378, 444 S.E.2d 22, 23 (1994) (quoting James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989)).

"The fact that there is contrary evidence in the record is of no

consequence if there is credible evidence to support the

commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.

App. 890, 894, 407 S.E.2d 32, 35 (1991) (citing Capitol Steel

Constr. Co., 8 Va. App. at 515, 382 S.E.2d at 488). "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. (citing Jules Hairstylists, Inc. v.

Galanes, 1 Va. App. 64, 69, 334 S.E.2d 592, 595 (1985)). "'A

question raised by conflicting medical opinion is a question of

fact.'" Dan River, Inc. v. Turner, 3 Va. App. 592, 596, 352

S.E.2d 18, 20 (1987) (quoting Commonwealth v. Powell, 2 Va. App.

712, 714, 347 S.E.2d 532, 533 (1986)).

It is clear that the commission considered the impact of

future vocational rehabilitation. In its opinion, the

commission discussed in detail the recommendations for

vocational rehabilitation from Drs. Kreutzer and Cifu and James

Dinger, a vocational consultant. The commission considered the

type and degree of the vocational rehabilitation that the

- 3 - doctors and Mr. Dinger opined could return claimant to

competitive employment. The commission concluded, "While we

acknowledge the conclusions of Drs. Kreutzer and Cifu that

[claimant] may be able to return to employment with extensive

rehabilitation, the conclusions appear speculative." We hold,

therefore, that the commission considered the evidence that

claimant could return to competitive employment with extensive

vocational rehabilitation. We will not disturb the commission's

determination that the success of vocational rehabilitation for

claimant was speculative.

We find that credible evidence existed in the record to

support the commission's award of permanent total disability

benefits. There was medical evidence in the record that

documented the permanent injury to claimant's brain, his

cognitive deficits such as impaired ability in memory function,

concentration, reading, and learning, and his IQ level of 58.

There was evidence that claimant cannot remember his social

security number, his telephone number, or his date of birth.

Claimant is unable to remember where his relatives live and

needs written directions to drive to unfamiliar areas. He must

be reminded by his girlfriend to bathe, brush his teeth, comb

his hair, and change his clothing. Claimant suffers from low

back pain and painful headaches that affect his vision in his

right eye.

- 4 - John A. Proffit, Jr., a vocational consultant, reviewed

claimant's medical records and interviewed claimant. In his

January 27, 1997 report, he opined that claimant would be unable

to return to his preinjury employment as a truck driver, and

stated that claimant "is not employable now or in the future and

he is permanently disabled."

Drs. Sanders and Kreutzer's report of October 17, 1996

discussed claimant's neuropsychological test results and stated,

"Given the severity of impairments, Mr. Smith is not employable

at the current time and it is highly unlikely that he will be

employable in the future."

In July 1997, Dr. Kreutzer wrote a letter to appellant's

attorney stating that claimant was "capable of sustaining

competitive meaningful employment." During his deposition, Dr.

Kreutzer explained the variance between the conclusion in his

October 17, 1996 report and the conclusion in the July 1997

letter. He stated that the original opinion that claimant was

unemployable was based on the impression that claimant was not

motivated to return to work. Dr. Kreutzer also stated that

claimant's unwillingness to follow his doctors' recommendations

was out of desire for secondary gain. Dr. Kreutzer conceded

that these impressions were not included in the October 17, 1996

report.

The commission chose to reject Dr. Kreutzer's July 1997

opinion that claimant could sustain competitive employment and

- 5 - Dr. Cifu's conclusion that claimant could return to his

preinjury employment. Instead, the commission relied on Dr.

Kreutzer's initial evaluation of claimant, Mr. Proffitt's

conclusions that claimant is unemployable, and the testimony

regarding claimant's ability to function in a nonvocational

environment.

The commission weighed the evidence and made credibility

determinations. We will not reverse those determinations on

appeal. Therefore, we hold that there was credible evidence in

the record to support the commission's award of permanent total

disability benefits.

III. CONCLUSION

For these reasons, we hold the commission considered the

impact of vocational rehabilitation for claimant and that there

was credible evidence in the record to support the commission's

award of permanent total disability benefits. Therefore, the

commission's award of permanent total disability benefits is

affirmed.

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