Opinion
Record No. 1368-94-3
Decided: January 31, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(J. D. Morefield; Ginger Jonas Largen; Browning, Morefield, Lamie Sharp, on brief), for appellant.
(Thomas H. Miller; Monica L. Taylor; Gentry, Locke, Rakes Moore, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Samuel B. Harmon contends that the Workers' Compensation Commission erred in sustaining the February 17, 1993 applications filed by Volvo Heavy Truck Corporation ("employer") on the basis that (1) Harmon's testimony was not credible; (2) he fraudulently obtained compensation benefits from January 29, 1992 to February 17, 1993; and (3) he was able to return to his pre-injury employment as of February 9, 1993. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "[I]t 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).
I. Harmon's Credibility
"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." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). It is well settled that credibility determinations are within the fact finder's exclusive purview. Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
Based upon the misrepresentations and false statements made by Harmon to his physicians and employer concerning his actual physical capabilities, the commission found that he was not credible. This finding is supported by the testimony of Harmon's supervisor, Bruce Jennings, and the February 12, 1992 surveillance videotape ("the videotape").
The videotape showed Harmon performing strenuous physical activity only two weeks after he told employer and his physicians that he could not perform a light duty job provided to him by employer. On February 14, 1992, after viewing the videotape, Jennings telephoned Harmon and asked him whether his condition had changed. Harmon answered in the negative. Jennings also testified that, at an April 7, 1992 meeting with employer's representatives, and before being confronted with the videotape, Harmon stated that his back pain was worse and that he could not do anything except walk around his yard. Harmon specifically denied being able to chop wood or work on his farm. After being shown the videotape, Harmon admitted that the videotape showed him engaged in these activities.
In addition to this evidence, Drs. Thomas Strong and Robert S. Brown, Jr., opined that Harmon demonstrated malingering behavior and had been deceptive concerning his actual physical capabilities.
Based upon this evidence, the commission was entitled to find that Harmon's testimony concerning his physical capabilities and his explanation for the videotape was not credible.
II. Fraud
The commission also found that Harmon fraudulently received compensation benefits from January 29, 1992 to February 17, 1993. This finding is supported by the videotape, Harmon's false statements made to employer's representatives at the April 7, 1992 meeting, and the medical records of Drs. Strong, Brown, and Kerry B. Donnelly.
The videotape depicts Harmon engaged in activities on his farm which were far more strenuous than the duties involved in the light duty job provided to him by employer. The light duty job involved connecting wires and switches inside a panel at a waist-high table. The job did not require lifting more than one pound. According to Dr. Brown's November 23, 1992 report, the videotape shows Harmon walking briskly, carrying a chainsaw, bending over to gather small logs, carrying a bucket to feed livestock, bending low to crawl through a fence, pulling wood off a truck, chopping and splitting firewood, and carrying a large load of firewood more than 100 feet. During all of the activities depicted on the videotape, there is no evidence that Harmon was in pain or was guarding his back.
Dr. Brown, who performed a comprehensive forensic and psychiatric evaluation of Harmon on September 15, 1992, concluded that, based upon Harmon's attempts to avoid detection by the investigator, his false statements to employer's representatives, and the videotape, Harmon had been deceptive concerning his physical capabilities. Dr. Brown opined that Harmon's alleged emotional problems resulted without a doubt from the April 7, 1992 meeting and not from the April 22, 1991 industrial accident.
Dr. Neil P. Dubner began treating Harmon for emotional problems on April 8, 1992, upon a referral from Harmon's attorney, one day after the April 7, 1992 meeting. Dr. Dubner opined that Harmon's emotional problems were caused by the April 22, 1991 industrial accident and that Harmon was disabled from working. However, Dr. Brown pointed out that Dr. Dubner seemed to have no knowledge of the false statements made by Harmon to his employer. Moreover, there was no evidence that Harmon suffered from any emotional problems prior to April 8, 1992. In its role as fact finder, the commission was entitled to accept Dr. Brown's opinion and to reject Dr. Dubner's opinion.
In a January 13, 1993 report, Dr. Strong, an orthopedic surgeon, stated that the videotape showed Harmon involved in strenuous physical activity with a completely normal, asymptomatic back. Based upon the videotape, Dr. Strong opined that Harmon had demonstrated malingering behavior, and there was no basis for continued disability or treatment. Dr. Strong indicated that Harmon could perform work that required lifting up to fifty pounds.
After viewing the videotape, Dr. Donnelly consistently stated in his reports from April 13, 1992 through November 15, 1993 that, during this entire period of time, Harmon was capable of performing the light duty job offered to him by employer on January 28, 1992. Moreover, Dr. Donnelly pointed out that the light duty job offered to Harmon on January 28, 1992 fell within the restrictions placed upon him by Dr. Edward A. Dannelly, Jr.
Based upon this evidence, the commission did not err in finding that Harmon knew he could perform the light duty job offered to him on January 28, 1992, but represented otherwise to employer and his physicians. Thus, the commission did not err in finding that Harmon fraudulently obtained compensation from January 29, 1992 to February 17, 1993.
III. Release to Return to Pre-injury Employment
The medical reports of Drs. Brown and Strong provide credible evidence to support the commission's finding that, as of February 9, 1993, Harmon was capable of performing his pre-injury work installing sunvisors on vehicles. Harmon's pre-injury work required lifting between five and nineteen pounds. Dr. Strong opined on January 13, 1993 that Harmon could perform work which required lifting up to fifty pounds. On February 9, 1993, Dr. Strong approved of a job description returning Harmon to his pre-injury work. Dr. Brown opined that Harmon had no emotional disability which could be fairly traced to the April 22, 1991 industrial accident and that his claims of back pain were greatly exaggerated.
In its role as fact finder, the commission was entitled to accept the opinions of Drs. Brown and Strong and to reject the contrary opinions of Dr. Dannelly and Dubner. "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." Brooks, 12 Va. App. at 894, 407 S.E.2d at 35.
Accordingly, the commission did not err in finding that, as of February 9, 1993, Harmon was able to return to his pre-injury work.
For the reasons stated, we affirm the commission's decision.
Affirmed.