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Vasquez v. Cardozo

Court of Appeals of Virginia
Jun 14, 1994
Record No. 1823-93-4 (Va. Ct. App. Jun. 14, 1994)

Opinion

Record No. 1823-93-4

Decided: June 14, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Arturo Hernandez, on brief), for appellant.

(Kathryn A. K. Untiedt; John K. Coleman; Slenker, Brandt, Jennings Johnston, on brief), for appellees.

Present: Judges Benton, Coleman and Willis


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Rene Vasquez appeals a decision of the Workers' Compensation Commission. Vasquez contends that the commission erred in (1) finding that his vision and hearing loss were not causally related to his June 21, 1991, compensable accident; (2) finding that he was not totally disabled from June 21, 1991, to present; (3) finding that his request for vocational rehabilitation was premature; (4) denying his request for a change in treating physicians; (5) denying him a fair hearing because he was represented by an attorney who also represented the employer; and (6) denying his motion to reopen or remand the case based upon newly-discovered evidence. On appeal, we view 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). Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. See Rule 5A:27.

I. and II. Causation and Disability

On June 21, 1991, Vasquez was injured when a high voltage cable struck a cart that he was pushing. He sustained electrical burns to his hands and feet. His employer, Oscar Cardozo, accepted the injuries as compensable.

Immediately after his injury, Vasquez was treated by a plastic surgeon, Dr. Bruce M. Freedman. Dr. Freedman performed surgery on Vasquez's left foot on July 23, 1991. This surgery entailed the amputation of a portion of Vasquez's great toe. Dr. Freedman's post-operative diagnosis included electrical burns to the left great toe and the right toes.

Vasquez continued treatment with Dr. Freedman during August, September, and December 1991. Dr. Freedman's office notes for this time period reflect that all of Vasquez's complaints concerned his toe and foot conditions. On September 17, 1991, Dr. Freedman noted that Vasquez was walking with no difficulty and returned him to full duty, provided he wore a solid boot while working. On September 19, 1991, Vasquez returned to Dr. Freedman stating that he had tried to work, but that his foot was still tender. Dr. Freedman excused Vasquez from work for four weeks. On October 22, 1991, Dr. Freedman noted that Vasquez's foot was healed, and he encouraged Vasquez to obtain a foam pad to place inside his boot so that he could return to work. Dr. Freedman gave no other opinion regarding disability at that time. Vasquez did not return to Dr. Freedman until December 9, 1991. At that time, Dr. Freedman opined that Vasquez had reached maximum medical improvement and released Vasquez from his care. In a December 16, 1991, letter to the employer's representative, Dr. Freedman opined that Vasquez was able to return to work without restriction.

Vasquez did not seek medical treatment again until June 5, 1992, when he returned to Dr. Freedman complaining of pain in his foot and, for the first time, complaining of intermittent dizziness, tingling of his extremities, headaches, occasional nightmares, and discomfort in his lower back. Vasquez denied changes in his vision, hearing, taste, or memory. He also denied having any pain in his neck or legs. Dr. Freedman noted that Vasquez's hearing was normal. Dr. Freedman gave Vasquez certain permanent partial disability ratings and opined that Vasquez would not require any future surgery. Dr. Freedman also stated that there was no known treatment for Vasquez's central nervous system complaints as they were non-focal and generalized.

On July 6, 1992, Vasquez was examined by Dr. Jammes. Vasquez's attorney arranged the appointment. Vasquez complained of pain in his feet, ears, eyes, and hands and of headaches. Dr. Jammes diagnosed neurosensory hearing and visual impairment, peripheral polyneuropathy involving both upper and lower extremities, reflex sympathetic dystrophy of the feet and probably the hands, amputation of the left great toe, and multiple burning cicatrix of feet and hand with persistent hyperpathia and impaired mentation. He opined that these sequela were secondary to the electrical injury. Dr. Jammes performed neurological tests on Vasquez, and he prescribed certain medication. Dr. Jammes gave no opinion regarding disability. In August 1992, he continued to opine that Vasquez suffered from impaired vision, mentation, and polyneuropathy due to the electrical injury. Dr. Jammes' September 2, 1992, office note reflects that Vasquez continued to complain of left ear discomfort and other symptoms. Again, Dr. Jammes gave no opinion regarding disability.

On July 13, 1992, Vasquez filed a change in condition application seeking temporary total disability benefits commencing July 6, 1992, a change in treating physicians to Dr. Juan Jammes, vocational counseling, and medical treatment for headaches, neck, back, arm, and leg pain, loss of vision, and loss of hearing.

In an October 28, 1992, letter to Cardozo's attorney, Dr. Freedman stated that after successfully treating Vasquez for his foot injury, he referred him to a neurologist, Dr. Robert Kurtzke. Dr. Freedman later received a call from Vasquez's attorney, who asked that Vasquez be referred to Dr. Jammes, a neurologist who spoke spanish. Dr. Freedman agreed to this referral.

On November 19, 1992, at Cardozo's request, Vasquez was examined by another neurologist, Dr. A. Chalmeta. Dr. Chalmeta examined Vasquez and obtained nerve conduction studies. He found no evidence of a peripheral neuropathy, reflex sympathetic dystrophy, or permanent damage to the central nervous system. He opined that Vasquez should be able to return to his previous occupation without restrictions. In his testimony, Vasquez admitted that he had not looked for any type of work since his injury.

The full commission, in affirming the deputy commissioner, found that, although some of Vasquez's numerous symptoms were caused by the industrial accident, there was insufficient evidence to prove that Vasquez's hearing and vision loss were caused by the accident or that any of his injuries were currently disabling. Findings of fact of the commission are binding and conclusive on review when supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488-89 (1989). We conclude that these findings are supported by credible evidence.

Dr. Chalmeta opined that claimant did not suffer from the conditions related by Dr. Jammes. Moreover, Vasquez did not complain of any of these symptoms to Dr. Freedman until eleven months after his accident. In June 1992, Dr. Freedman noted that Vasquez's hearing was normal and that Vasquez denied any changes in his vision or hearing. The commission rejected Dr. Jammes's opinion regarding causation and accepted the opinions and observations of Drs. Freedman and Chalmeta. Their opinions constitute credible evidence to support the commission's finding that Vasquez's alleged vision and hearing loss were not proven to be caused by the compensable accident. In addition, none of the physicians opined that Vasquez was disabled from returning to work in 1992. Accordingly, we cannot say as a matter of law that the commission erred in finding that Vasquez failed to meet his burden of proving that his injuries were disabling after July 1992.

III. Vocational Rehabilitation

The commission did not err in denying Vasquez's request for vocational rehabilitation. No credible medical evidence established that he was disabled from performing his pre-injury work.

IV. Change In Treating Physician

The commission found no support for Vasquez's allegations of medical malpractice by Dr. Freedman. This finding is supported by credible evidence. No evidence indicates that Dr. Freedman's treatment was inadequate or incompetent. Dr. Freedman unequivocally stated in his October 28, 1992, letter that he referred Vasquez to Dr. Kurtzke, but later referred him to Dr. Jammes only upon the request of Vasquez's counsel. In its role as fact finder, the commission was entitled to rely upon this evidence and to give little weight to whether a referral slip was ever given to Vasquez. Accordingly, we cannot say that the commission erred in finding that there was no basis to order a change in treating physicians to Dr. Jammes. The commission did not err in holding that Vasquez's counsel should not be permitted to medically manage the case and that a proper referral had previously been made by Dr. Freedman to Dr. Kurtzke.

V. Attorney's Conduct

The record contains insufficient evidence for this Court to consider whether the conduct of Vasquez's previous attorney was ethical. Accordingly, we decline to address this question.

VI. Motion to Reopen or Remand

All of the evidence which Vasquez asked to be considered post-hearing was available to him through the exercise of due diligence prior to the hearing. Accordingly, the commission did not err in refusing to consider such evidence or to remand the case. See Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 614, 401 S.E.2d 200, 207 (1991).

For the reasons stated, we affirm the commission's decision.

Affirmed.


Summaries of

Vasquez v. Cardozo

Court of Appeals of Virginia
Jun 14, 1994
Record No. 1823-93-4 (Va. Ct. App. Jun. 14, 1994)
Case details for

Vasquez v. Cardozo

Case Details

Full title:RENE VASQUEZ v. OSCAR CARDOZO AND OLD REPUBLIC INSURANCE COMPANY

Court:Court of Appeals of Virginia

Date published: Jun 14, 1994

Citations

Record No. 1823-93-4 (Va. Ct. App. Jun. 14, 1994)