Opinion
Record No. 0508-92-4
December 8, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Susan A. Evans (Siciliano, Ellis, Dyer Boccarosse, on brief), for appellant.
Peter J. Jones for appellee.
Present: Judges Baker, Coleman and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Kenbridge Construction Company, Inc. (employer) appealed the decision of the Virginia Workers' Compensation Commission (commission) holding that Ralph Molina (claimant) was unable to return to work on April 5, 1991, and awarding benefits commencing April 18, 1991. We find that the commission's opinion erroneously stated that a report was not in the record and that this report may have changed its finding. For that reason, we reverse and remand this case for further consideration by the commission, including a review of that report.
On July 10, 1990, claimant sustained a compensable work-related injury for which the commission entered an award. On April 18, 1991, employer filed an application with the commission asking that compensation be suspended upon the ground that claimant had been released by his doctor for return to work without restriction as of April 5, 1991.
On August 14, 1990, claimant came under the care of Dr. Jeri R. Carr, a neurologist. Until April 5, 1991, Dr. Carr, based on claimant's descriptions of his inability to perform physical acts, opined that claimant's disability prevented his return to work without restriction. However, upon reviewing a video tape of claimant actively performing several physical acts, and having considered the impressions of Dr. Anthony Debs, Dr. Carr changed her opinion and on April 5, 1991 reported, "I have reviewed Dr. Debs' impressions and the video tape . . . and the level of activity that [claimant] was able to sustain without much difficulty suggests that [he] can indeed return back to work without restriction." The commission's opinion states: "We do not have Dr. Debs' `impressions' to which Dr. Carr refers."
At oral argument, counsel for both parties conceded that the report of Dr. Debs' "impressions" was before the deputy commissioner, who found contrary to the commission. We do not know whether Dr. Debs' report would cause the commission to agree with the deputy commissioner's finding. There is no doubt that Dr. Debs' report is or has been in evidence in this case and was not considered by the commission. Therefore, since the commission based its decision on an incomplete record, we reverse its decision and remand the case to the commission with direction that a copy of Dr. Debs' report be presented to and reviewed by the commission.
We point to particular evidence that may have affected the commission's decision if it had been considered during the decision process. We do not express an opinion as to the weight or credibility of that evidence, and nothing herein should be construed to indicate otherwise. We do suggest, however, that in view of the error, further oral argument before the commission be permitted prior to the issuance of another opinion in this case.
For the reason stated, we reverse and remand this case to the commission.
Reversed and remanded.