Steve M. Hayes v. 4 E Corporation

• Court: Court of Appeals of Virginia
• Decided: April 1, 1997
• Docket: 2509962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Fitzpatrick Argued at Richmond, Virginia

STEVE M. HAYES MEMORANDUM OPINION * BY v. Record No. 2509-96-2 JUDGE LARRY G. ELDER APRIL 1, 1997 4 E CORPORATION, ET AL.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Malcolm Parks, III (Steven S. Biss; Maloney, Barr & Huennekens, on briefs), for appellant. S. Vernon Priddy, III (Ralph L. Whitt, Jr.; Robert F. Moorman; Sands, Anderson, Marks & Miller, on brief), for appellees.

Steve M. Hayes (appellant) appeals a decision of the

Workers' Compensation Commission (commission) denying his claim

for permanent total disability benefits under Code

§ 65.2-503(C)(1). He contends that the commission erred when it

admitted and considered a videotape of appellant repairing his

front door and then relied upon a letter from appellees' medical

expert interpreting the videotape. He also contends that the

commission erred when it reversed the deputy commissioner's

credibility determination regarding the medical experts and

reweighed the medical evidence. Finally, he contends that the

evidence was insufficient to support the commission's decision.

For the reasons that follow, we affirm.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.

FACTS

The parties are familiar with the record and this memorandum

opinion recites only those facts necessary to the disposition of

the issues before the Court.

On November 8, 1983, appellant was severely injured when he

fell 110 feet off of scaffolding while working. 4 E Corporation,

his employer, accepted appellant's injuries as compensable. In

1994, appellant's eligibility for temporary compensation benefits

expired, and appellant filed a claim for permanent total

disability benefits pursuant to Code § 65.2-503(C)(1). Appellant

alleged that his injuries in 1983 had resulted in the loss of use

of his right arm and leg. On February 28 and October 11, 1995, a deputy commissioner

held a hearing on appellant's claim. Appellant's medical

evidence regarding the loss of use of his right arm and leg

consisted of the de bene esse deposition of Dr. Adelaar, his

attending physician since his accident, and the testimony of Dr.

Sinsabaugh, a rehabilitation counselor. Appellees' medical

evidence on this issue consisted of the testimony of Mr. Kirby,

the de bene esse deposition of Ms. Knowles, and the written opinion letter of Dr. Khokhar.

Due to time constraints, the first day of the hearing was

adjourned at the conclusion of Mr. Kirby's direct examination but

before his cross-examination. When appellant's counsel moved the

-2- deputy commissioner to order appellees' counsel to avoid

substantive discussions with Mr. Kirby prior to the resumption of

the hearing, the deputy commissioner said: "All right. In other

words just stand as you are and don't discuss the case with

anybody until we come back."

On August 8, appellant's counsel wrote a letter to the

deputy commissioner stating that appellees had obtained a

videotape of appellant from a private investigator that they

sought to introduce into evidence when the hearing resumed.

Appellant's counsel moved to exclude the videotape, and the

deputy commissioner ruled that he would admit the videotape for

impeachment purposes only. Both parties proffered letters from

their respective medical experts stating their analysis of the

videotape's contents. The parties resumed and concluded the hearing on October 11.

On January 30, 1996, the deputy commissioner awarded permanent

total disability benefits to appellant. Appellees appealed, and

the full commission reversed. The commission held that the

videotape was admissible for any purpose and that appellant had

failed to prove that he had lost the use of his right arm and

leg.

II.

ISSUES RELATED TO THE VIDEOTAPE

Appellant makes several arguments relating to the admission

of the videotape. First, appellant contends that the commission

-3- erred when it admitted the videotape for any purpose because the

contents of the videotape were not relevant to any issue at the

hearing. Second, he asserts that the videotape was inadmissible

because the deputy commissioner had ordered the suspension of all

discovery at the close of the first day of the hearing. Third,

appellant contends that the commission inaccurately described the

contents of the tape. Finally, he argues that he was denied his

constitutional right to cross-examine Dr. Khokhar regarding his

analysis of the videotape's contents. A.

We hold that the commission did not err when it held that

the videotape of appellant was admissible. We note that the

commission was not required to give any deference to the deputy

commissioner's evidentiary ruling. "An appeal of a deputy

commissioner's award empowers the [commission] to reexamine all

of the deputy commissioner's conclusions." Mace v. Merchant's

Delivery Moving & Storage, 221 Va. 401, 404 n.3, 270 S.E.2d 717,

719 n.3 (1980) (per curium). In addition, the contents of the

videotape were relevant to the primary issue at the hearing:

whether or not appellant had lost the use of his right arm and

leg. See Pantry Pride-Food Fair Stores v. Backus, 18 Va. App.

176, 179, 442 S.E.2d 699, 701 (1994). "Evidence is relevant if

it has any logical tendency to prove an issue in a case." Goins

v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114, 127, cert. denied, U.S. , 117 S. Ct. 222, 136 L.Ed.2d 154 (1996).

-4- The videotape depicts appellant using his right arm and walking

and is therefore relevant to whether or not he had lost the use

of these extremities.

-5- B.

We disagree with appellant's argument that the deputy

commissioner had ordered the parties to cease discovery at the

conclusion of the first day of testimony on February 28 and that

the commission erred when it held that the parties were permitted

to develop additional evidence in the months between the first

and second day of the hearing. Our review of the record

indicates that the parties were not precluded from developing

additional evidence after the first day of the hearing. The

record establishes that when the deputy commissioner ordered the

parties to "stand as you are," the only issue before him was

whether appellees' counsel could have substantive communications

with Mr. Kirby before the hearing resumed. In addition, the

deputy commissioner did not order the record closed, and the

record reveals no discovery request that prevented the parties

from developing additional evidence as the hearing progressed.

Thus, the commission was within its power when it admitted the

videotape for any purpose. C.

We also disagree with appellant's contention that the

commission inaccurately depicted the contents of the videotape in

its decision. We have viewed the videotape of appellant and hold

that the commission's portrayal of its contents was faithful. In

the scene of appellant at the automatic teller machine, the

videotape shows appellant using his right hand to retrieve and

-6- replace his wallet in his back pocket and walking without a

"significant" antalgic gait to his car. In the footage of

appellant repairing his front door, appellant is shown carrying a

ladder with both hands at arm's length and then standing on the

second step of the ladder for at least a few minutes. The tape

shows appellant holding a screwdriver in his right hand and using

it to pry and scrape at the upper corner of the outside door

frame. The commission's portrayal of appellant's descent from

the ladder and then down the porch steps is also accurate. D.

Appellant argues that his due process rights were violated

when the commission relied upon the letter proffered by appellees

in which Dr. Khokhar analyzed the contents of the videotape.

Appellant asserts that the commission based its decision upon

this letter and that his due process rights were violated by this

reliance because he had no opportunity to cross-examine Dr.

Khokhar on the opinion expressed in his letter. We disagree.

Contrary to appellant's assertion, the record does not establish

that the commission relied on Dr. Khokhar's letter of September

22, 1995 in its decision. Instead, the only mention of Dr.

Khokhar's opinion in the commission's decision refers to his

letter of October 10, 1994 in which he referred to the evaluation

performed by Mr. Kirby and Ms. Knowles. Thus, even if the

commission did erroneously deny appellant his right to confront

Dr. Khokhar, appellant has failed to demonstrate any prejudice.

-7- Moreover, even if the commission had relied on Dr. Khokhar's

unchallenged opinion, appellant's due process rights were not

violated. "'Generally speaking, the Confrontation Clause

guarantees an opportunity for effective cross-examination, not

cross-examination that is effective . . . to whatever extent, the

[claimant] might wish.'" Nichols v. Commonwealth, 6 Va. App.

426, 429, 369 S.E.2d 218, 220 (1988) (quoting Delaware v.

Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L.Ed.2d 15

(1985)). In this case, appellant was aware that the deputy

commissioner's evidentiary ruling was subject to de novo review by the commission and that appellees had proffered Dr. Khokhar's

analysis of the videotape. Appellant had the opportunity to

depose Dr. Khokhar regarding his letter before the deputy

commissioner closed the record. Thus, we cannot say that

appellant was unconstitutionally deprived of an opportunity to

cross-examine Dr. Khokhar.

III.

ISSUES RELATED TO THE MEDICAL EVIDENCE

Appellant makes several arguments regarding the medical

evidence supporting the commission's decision. First, he argues

that Dr. Adelaar's medical opinion was unrebutted because Dr.

Khokhar never expressed an opinion regarding appellant's ability

to use his right arm and leg. Second, appellant contends that

the commission failed to accord appropriate weight to Dr.

Adelaar's opinion. Third, appellant asserts that the commission

-8- erroneously reversed the credibility determinations of the deputy

commissioner. Finally, appellant argues that the evidence was

insufficient to support the commission's decision that claimant

was not entitled to permanent total disability benefits.

A.

We hold that Dr. Adelaar's opinion that appellant was unable

to use his right arm and leg in any gainful employment was

rebutted by the opinion in Dr. Khokhar's letter of October 10,

1994. Appellant is correct that "[t]he commission may not

arbitrarily disregard uncontradicted evidence of unimpeached

witnesses, which is not inherently incredible and not

inconsistent with other facts in the record." Hercules, Inc. v.

Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991).

However, it is apparent that Dr. Khokhar intended his letter of

October 10, 1994 as an expression of his medical opinion that

appellant could use his right arm and leg in either sedentary or

light work. In his letter of September 21, 1994, Dr. Khokhar

stated that he would "comment" on appellant's ability to work

after reviewing the functional capacity evaluation performed by

Mr. Kirby and Ms. Knowles. Then, after the evaluation was

completed, Dr. Khokhar stated in his letter of October 10, 1994

that "[t]he work capacity evaluation has shown [appellant's]

capability of utilizing [his] right upper and lower extremity for

gainful employment . . . ." Based on the context of his two

letters, we conclude that Dr. Khokhar intended to adopt the

-9- conclusions of Mr. Kirby's and Ms. Knowles' evaluation as his

opinion in his letter of October 10, 1994. This opinion rebutted

Dr. Adelaar's opinion and entitled the commission to resolve this

conflict in the evidence.

Moreover, Dr. Adelaar's opinion was also rebutted by the

opinion of Mr. Kirby. The commission may consider non-medical

evidence in determining the status of a claimant's disability,

and a witness who is not a medical doctor may give admissible

medical testimony. See Cafaro Constr. Co. v. Strother, 15 Va.

App. 656, 660 n.2, 426 S.E.2d 489, 492 n.2 (1993); Seneca Falls

Greenhouse & Nursery v. Layton, 9 Va. App. 482, 486-87, 389

S.E.2d 184, 187 (1990). Mr. Kirby opined during his testimony

and in his report that appellant could use his right arm and leg

in either sedentary or light employment. This opinion rebutted

Dr. Adelaar's opinion regarding the extent to which appellant had

lost the use of his right arm and leg and likewise created a

B.

We also hold that the commission did not err when it

declined to adopt the opinion of Dr. Adelaar, who was appellant's

attending physician. Generally, "great weight should be given to

the evidence of an attending physician." C.D.S. Constr. Servs.

v. Petrock, 218 Va. 1064, 1071, 243 S.E.2d 236, 241 (1978).

However, "[an attending physician's] opinion is not binding on

the commission. The probative weight to be accorded such

-10- evidence is for the commission to decide; and if it is in

conflict with other medical evidence, the commission is free to

adopt that view 'which is most consistent with reason and

justice.'" Id. (quoting Williams v. Fuqua, 199 Va. 709, 714, 101

S.E.2d 562, 567 (1958)). In this case, the commission weighed

the conflicting opinions of Dr. Adelaar, Dr. Khokhar, and Mr.

Kirby and was within its discretion when it decided that the

opinions of Dr. Khokhar and Mr. Kirby were more persuasive. C.

We hold that the commission did not err when it reversed

the credibility determination of the deputy commissioner

regarding the medical evidence. Upon review of a deputy

commissioner's decision, the commission may not arbitrarily

disregard the deputy commissioner's specific credibility

determinations that are based upon a recorded observation of the

demeanor or appearance of a witness. See Goodyear Tire & Rubber

Co. v. Pierce, 5 Va. App. 374, 382, 363 S.E.2d 433, 437 (1987).

In such instances, the commission is required to articulate the

basis for its conclusion. Id. However, if the deputy

commissioner does not include a specific, recorded observation

regarding the behavior, demeanor or appearance of a witness in

his or her opinion, the commission has no duty to explain its

reasons for making credibility determinations that differ from

those made by the deputy commissioner. Bullion Hollow Enterprises v. Lane, 14 Va. App. 725, 729, 418 S.E.2d 904, 907

-11- (1992).

The commission's reversal of the deputy commissioner's

determination that Dr. Adelaar's opinion was more credible than

Dr. Khokhar's was not erroneous. The deputy commissioner did not

base his opinion on any observation of either doctor's demeanor

or behavior. Indeed, neither doctor testified in person before

the deputy commissioner. Thus, the commission was under no duty

to explain its decision to reverse the credibility finding of the

deputy commissioner. Nevertheless, the commission stated that it

found "the report of Dr. Khokhar and the functional capacities

evaluation team to be more reliable and probative [because] it

was based on objective and empirical testing . . . while Drs.

Adelaar and Sinsabaugh relied essentially on what the claimant

represented he could do." This conclusion is supported by

credible evidence in the record. D.

We hold that the evidence was sufficient to support the

commission's decision. "It is fundamental that a finding of fact

made by the commission is conclusive and binding upon this Court

on review. A question raised by conflicting medical opinion is a

question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714,

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

-12- Relying on the opinions of "Dr. Khokhar and the functional

capacities evaluators," the commission concluded that appellant

"failed to prove that he is unable to use his right hand and

right leg to any substantial degree in gainful employment." We

cannot say that this conclusion is not supported by credible

evidence in the record.

For the foregoing reasons, we affirm the commission's

decision.

Affirmed.

-13-