COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
SKIP'S AUTO PARTS/ADP TOTALSOURCE AND RELIANCE INSURANCE COMPANY IN LIQUIDATION MEMORANDUM OPINION* v. Record No. 0846-02-2 PER CURIAM SEPTEMBER 24, 2002 ELISHA DAVID RICE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. Vernon Priddy III; Jeffery W. Saunders; Sands Anderson Marks & Miller, on brief), for appellants.
(Gregory O. Harbison; Geoffrey R. McDonald & Associates, on brief), for appellee.
Skip's Auto Parts/ADP TotalSource and its insurer
(hereinafter referred to as "employer") contend the Workers'
Compensation Commission erred in (1) refusing to reopen the
record and consider additional medical evidence submitted by
employer after the hearing and after the deputy commissioner
issued his opinion; and (2) finding that Elisha David Rice
(claimant) proved that he was partially disabled after February
12, 2001, as a result of his compensable left carpal tunnel
syndrome. Upon reviewing the record and briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. Additional Medical Evidence
At the April 25, 2001 hearing, Deputy Commissioner Tabb
left the record open through May 18, 2001, for the purpose of
taking the depositions of Dr. Kostas J. Constantine and/or
Dr. Ralph E. Hagan. The parties did not submit any depositions
to the commission by that date. On May 10, 2001, employer
requested that the commission consider an April 27, 2001 letter
report by Dr. Constantine to Dr. Peter VanDerMeid.
On June 11, 2001, the deputy commissioner issued his
decision finding that claimant proved he suffered from left
carpal tunnel syndrome causally related to his employment and
awarding him temporary total disability benefits from October 9,
2000 through February 13, 2001 and temporary partial disability
benefits beginning February 14, 2001 and continuing.
On June 20, 2001, employer filed a motion to vacate and
reopen the record. In that motion, employer requested that the
deputy commissioner reopen the record and consider the April 12,
2001 and May 21, 2001 office notes of Dr. Robert G. Squillante,
a May 10, 2001 operative report, and the April 27, 2001 letter
from Dr. Constantine to Dr. VanDerMeid.
On June 28, 2001, the deputy commissioner declined to
reconsider or vacate his opinion. On review, the commission
ruled that the additional medical evidence in question was "not
of such a character as on re-Hearing [might] produce a different
- 2 - result on the merits." In so ruling, the commission found as
follows:
Although the notes suggest ongoing symptoms including symptoms similar to carpal tunnel syndrome, no physician of record disputes the prior carpal tunnel syndrome diagnosis. Even Dr. Constantine, who now suggests that the claimant's current symptoms may be attributable to cervical stenosis, did not rescind his previous diagnosis. Thus, all four records fail to meet the requirements of Rule 3.3 and the Commission declines to consider them.
Rule 3.3 of the Rules of the Workers' Compensation
Commission allows for consideration of after-discovered evidence
by the full commission either by agreement of the parties or
upon a petition to reopen or receive after-discovered evidence.
No evidence showed that the parties agreed to the submission of
the additional medical records presented by employer.
April 12, 2001 Office Notes
Dr. Squillante's April 12, 2001 office notes existed prior
to the hearing and, therefore, employer was required to prove
that those notes met the requirements for after-discovered
evidence. As the party seeking to reopen the record on the
basis of after-discovered evidence, employer bore the burden of
proving that
(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. - 3 - Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452
S.E.2d 881, 883 (1995).
No evidence showed that Dr. Squillante's April 12, 2001
office notes could not have been obtained prior to the hearing
through the exercise of reasonable diligence. Furthermore,
nothing showed, that if considered, the notes would produce an
opposite result. Dr. Squillante opined that claimant suffered
from cervical stenosis with left upper extremity numbness and
weakness. However, nothing contained in Dr. Squillante's April
12, 2001 office notes contradicted Dr. Constantine's
pre-existing opinion that claimant suffered from left carpal
tunnel syndrome causally related to his employment, which
resulted in disability. Accordingly, because employer did not
satisfy the second and fourth prongs of the Williams test with
respect to the April 12, 2001 office notes, the commission did
not err in refusing to reopen the record to consider those notes
as after-discovered evidence.
April 27, 2001 Letter, May 10, 2001 Operative Report, and May 21, 2001 Office Notes
The April 27, 2001, May 10, 2001, and May 21, 2001
additional medical records did not address the issues before the
commission concerning the compensability and causation of
claimant's left carpal tunnel syndrome and his disability status
with respect to those conditions as of the hearing date.
Nothing in those additional reports contradicted
- 4 - Dr. Constantine's previous carpal tunnel diagnosis and opinion
that claimant's left carpal tunnel syndrome was directly related
to his employment. Thus, those medical reports would not have
produced a different result.
Furthermore, as the commission correctly noted, if employer
contends that these additional medical records, which were
created after the hearing in this case, in some way indicate
another cause for claimant's ongoing current disability,
employer's proper course of action is to file a
change-in-condition application with the commission. Contrary
to employer's assertions, the holding in Mize v. Rocky Mount
Ready Mix, 11 Va. App. 601, 401 S.E.2d 200 (1991), is not
applicable to this case. Unlike the situation in Mize, under
the procedural posture of this case, the doctrine of res
judicata would not prevent employer from filing a
change-in-condition application at any point after February 14,
2001, with appropriate documentation, and proving that
claimant's ongoing disability was caused by a condition other
than his left carpal tunnel syndrome.
II. Disability
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
- 5 - if supported by credible evidence. See James v. Capitol Steel
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
SKIP'S AUTO PARTS/ADP TOTALSOURCE AND RELIANCE INSURANCE COMPANY IN LIQUIDATION MEMORANDUM OPINION* v. Record No. 0846-02-2 PER CURIAM SEPTEMBER 24, 2002 ELISHA DAVID RICE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. Vernon Priddy III; Jeffery W. Saunders; Sands Anderson Marks & Miller, on brief), for appellants.
(Gregory O. Harbison; Geoffrey R. McDonald & Associates, on brief), for appellee.
Skip's Auto Parts/ADP TotalSource and its insurer
(hereinafter referred to as "employer") contend the Workers'
Compensation Commission erred in (1) refusing to reopen the
record and consider additional medical evidence submitted by
employer after the hearing and after the deputy commissioner
issued his opinion; and (2) finding that Elisha David Rice
(claimant) proved that he was partially disabled after February
12, 2001, as a result of his compensable left carpal tunnel
syndrome. Upon reviewing the record and briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. Additional Medical Evidence
At the April 25, 2001 hearing, Deputy Commissioner Tabb
left the record open through May 18, 2001, for the purpose of
taking the depositions of Dr. Kostas J. Constantine and/or
Dr. Ralph E. Hagan. The parties did not submit any depositions
to the commission by that date. On May 10, 2001, employer
requested that the commission consider an April 27, 2001 letter
report by Dr. Constantine to Dr. Peter VanDerMeid.
On June 11, 2001, the deputy commissioner issued his
decision finding that claimant proved he suffered from left
carpal tunnel syndrome causally related to his employment and
awarding him temporary total disability benefits from October 9,
2000 through February 13, 2001 and temporary partial disability
benefits beginning February 14, 2001 and continuing.
On June 20, 2001, employer filed a motion to vacate and
reopen the record. In that motion, employer requested that the
deputy commissioner reopen the record and consider the April 12,
2001 and May 21, 2001 office notes of Dr. Robert G. Squillante,
a May 10, 2001 operative report, and the April 27, 2001 letter
from Dr. Constantine to Dr. VanDerMeid.
On June 28, 2001, the deputy commissioner declined to
reconsider or vacate his opinion. On review, the commission
ruled that the additional medical evidence in question was "not
of such a character as on re-Hearing [might] produce a different
- 2 - result on the merits." In so ruling, the commission found as
follows:
Although the notes suggest ongoing symptoms including symptoms similar to carpal tunnel syndrome, no physician of record disputes the prior carpal tunnel syndrome diagnosis. Even Dr. Constantine, who now suggests that the claimant's current symptoms may be attributable to cervical stenosis, did not rescind his previous diagnosis. Thus, all four records fail to meet the requirements of Rule 3.3 and the Commission declines to consider them.
Rule 3.3 of the Rules of the Workers' Compensation
Commission allows for consideration of after-discovered evidence
by the full commission either by agreement of the parties or
upon a petition to reopen or receive after-discovered evidence.
No evidence showed that the parties agreed to the submission of
the additional medical records presented by employer.
April 12, 2001 Office Notes
Dr. Squillante's April 12, 2001 office notes existed prior
to the hearing and, therefore, employer was required to prove
that those notes met the requirements for after-discovered
evidence. As the party seeking to reopen the record on the
basis of after-discovered evidence, employer bore the burden of
proving that
(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. - 3 - Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452
S.E.2d 881, 883 (1995).
No evidence showed that Dr. Squillante's April 12, 2001
office notes could not have been obtained prior to the hearing
through the exercise of reasonable diligence. Furthermore,
nothing showed, that if considered, the notes would produce an
opposite result. Dr. Squillante opined that claimant suffered
from cervical stenosis with left upper extremity numbness and
weakness. However, nothing contained in Dr. Squillante's April
12, 2001 office notes contradicted Dr. Constantine's
pre-existing opinion that claimant suffered from left carpal
tunnel syndrome causally related to his employment, which
resulted in disability. Accordingly, because employer did not
satisfy the second and fourth prongs of the Williams test with
respect to the April 12, 2001 office notes, the commission did
not err in refusing to reopen the record to consider those notes
as after-discovered evidence.
April 27, 2001 Letter, May 10, 2001 Operative Report, and May 21, 2001 Office Notes
The April 27, 2001, May 10, 2001, and May 21, 2001
additional medical records did not address the issues before the
commission concerning the compensability and causation of
claimant's left carpal tunnel syndrome and his disability status
with respect to those conditions as of the hearing date.
Nothing in those additional reports contradicted
- 4 - Dr. Constantine's previous carpal tunnel diagnosis and opinion
that claimant's left carpal tunnel syndrome was directly related
to his employment. Thus, those medical reports would not have
produced a different result.
Furthermore, as the commission correctly noted, if employer
contends that these additional medical records, which were
created after the hearing in this case, in some way indicate
another cause for claimant's ongoing current disability,
employer's proper course of action is to file a
change-in-condition application with the commission. Contrary
to employer's assertions, the holding in Mize v. Rocky Mount
Ready Mix, 11 Va. App. 601, 401 S.E.2d 200 (1991), is not
applicable to this case. Unlike the situation in Mize, under
the procedural posture of this case, the doctrine of res
judicata would not prevent employer from filing a
change-in-condition application at any point after February 14,
2001, with appropriate documentation, and proving that
claimant's ongoing disability was caused by a condition other
than his left carpal tunnel syndrome.
II. Disability
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
- 5 - if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In awarding claimant disability benefits, the commission
found as follows:
On October 11, 2000, the claimant underwent both left carpal tunnel and cubital tunnel releases. On October 23, 2000, he was restricted from using his arm in any type of employment for an additional four weeks. On November 11, 2001, [sic] Dr. Constantine recommended that the claimant remain out of work during his physical therapy in November. On December 15, 2000, Dr. Constantine recommended that the claimant "continue therapy, work on strengthening, keep him on light duty with no use of the left upper extremity until I see him back in one month."
In a December 26, 2000, physical capacities evaluation, signed by Dr. Constantine, it is noted that the claimant should have "zero" work until January 15, 2001. On January 4, 2001, Dr. Constantine extended the claimant's restrictions through January 29, 2001, and later advised that he should have no use of the left hand for another four weeks past January 29, 2001. The claimant returned to work on February 14, 2001.
Based upon these factual findings, the commission affirmed
the deputy commissioner's findings that claimant proved he was
totally disabled from October 9, 2001 through February 13, 2001
and partially disabled beginning February 14, 2001 and
continuing.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
- 6 - Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). Dr. Constantine's uncontradicted
medical records and opinions constitute credible evidence from
which the commission, as fact finder, could reasonably infer
that claimant remained partially disabled after February 12,
2001, as a result of his compensable left carpal tunnel
syndrome. "Where reasonable inferences may be drawn from the
evidence in support of the commission's factual findings, they
will not be disturbed by this Court on appeal." Hawks v.
Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695,
698 (1988). Moreover, "[i]n 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." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991). Accordingly, we are bound by the commission's factual
findings and will not disturb them on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
- 7 -