Steve M. Hayes v. 4 E Corporation

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
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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
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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).
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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.
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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
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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.
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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
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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
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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
conflict in the evidence.
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
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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
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(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).
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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.
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