Earl R. Toombs, VA Forestry v. Raymond Smith ( 1999 )

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).
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"'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
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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.
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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
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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.
Affirmed.
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