HAYES v 4 E CORPORATION
APRIL 1, 1997
Record No. 2509-96-2
COURT OF APPEALS OF VIRGINIA
Argued at Richmond, Virginia
STEVE M. HAYES
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.
Present: Judges Coleman, Elder and Fitzpatrick
MEMORANDUM OPINION[*] BY JUDGE LARRY G. ELDER
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.
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
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
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
ISSUES RELATED TO THE VIDEOTAPE
Appellant makes several arguments relating to the admission of
the videotape. First, appellant contends that the commission
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.
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). 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
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.
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
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
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.
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.
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 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.
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 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.
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 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
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 (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.
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). 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
For the foregoing reasons, we affirm the commission’s
[*] Pursuant to Code ? 17-116.010
this opinion is not designated for publication.