COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Elder and Senior Judge Bumgardner
Argued at Alexandria, Virginia
UNITED AIRLINES, INC.
OPINION BY
v. Record No. 2054-10-4 JUDGE LARRY G. ELDER
MAY 10, 2011
THOMAS M. HAYES
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Michael N. Salveson (Andrea Zizzi; Littler Mendelson, P.C., on
briefs), for appellant.
Peter M. Sweeny (Peter M. Sweeny, Esquire, P.C., on brief), for
appellee.
United Airlines, Inc., (employer) appeals from a decision of the Workers’ Compensation
Commission (the commission) holding that Thomas M. Hayes (claimant), a former employee, is
entitled to ongoing benefits under the Workers’ Compensation Act (the Act), Code §§ 65.2-100
to -1310. On appeal, employer contends the commission erroneously found claimant did not
materially aggravate his compensable traumatic brain injury in a subsequent automobile accident
and erroneously held that claimant’s settlement of his third-party cause of action arising out of
the automobile accident, without notice to the employer, did not prejudice employer as related to
claimant’s compensable brain injury. We hold evidence of prejudice from the settlement as to
injuries other than the compensable brain injury does not justify termination of the award for that
injury. We hold further the evidence supports the commission’s finding that claimant’s 2006
auto accident did not materially aggravate his compensable 2004 brain injury and, thus, that the
commission correctly concluded employer has failed to establish prejudice as to that injury.
Accordingly, we affirm the commission’s refusal to terminate benefits for claimant’s traumatic
brain injury.
I. BACKGROUND
On April 5, 2004, claimant, a computer technician for employer, sustained injuries to
several body parts, including his head and brain, when some steel shelving fell on him. He was
diagnosed with a closed head trauma with cerebral concussion and post-concussive syndrome.
He came under the care of neurologist Harmeet Singh, who saw him on three occasions and
referred him to a hospital head injury center for further evaluation and management. Claimant
was hospitalized for almost four weeks and underwent treatment during which he reported he
“had to [re-]learn how to walk and talk.” Upon his discharge, he continued with an outpatient
program. Claimant also experienced severe pain in his lower back, left arm, and left knee and
received treatment for those injuries, as well. While hospitalized for his brain injury, claimant
came under the care of psychiatrist Nooreddin Mirmirani, who continued to oversee claimant’s
care for the traumatic brain injury following his release from the hospital. Employer accepted
the brain injury as compensable, and the commission later held the injuries to his lower back, left
arm, and left knee were compensable, as well.
On April 18, 2006, a little over two years after sustaining his compensable industrial
injuries, claimant was in an automobile accident when he was hit from behind while stopped at a
traffic light. About thirteen months later, without consulting employer or its third party
administrator, claimant settled all claims arising out of the 2006 auto accident.
On February 15, 2008, employer filed an application for hearing seeking to terminate
claimant’s compensation award, contending claimant’s 2006 auto accident aggravated his 2004
compensable lower back injury and that he settled the claim in a manner that prejudiced
employer’s right of subrogation. The deputy commissioner agreed and terminated the award.
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On request for review, claimant conceded he forfeited workers’ compensation rights as to his
back injury but contended that because he suffered ongoing temporary total disability causally
related to the work-related injuries to his brain, left arm, and left knee, employer was not entitled
to terminate his benefits. The commission noted it appeared employer had claimed only that the
auto accident aggravated the compensable back injury and, thus, that the deputy did not address
whether the auto accident aggravated claimant’s brain, knee, and arm injuries. The commission
also noted a gap in some of the relevant medical records filed with the commission. It remanded
the matter to the deputy to take additional evidence in order to determine whether the 2006 auto
accident “sufficiently aggravated the claimant’s brain injury, left arm injury and left knee injury
resulting in a material change in the claimant’s symptoms related to the original work accident.”
On remand, the deputy concluded claimant’s settlement of his third-party suit defeated
employer’s subrogation rights as to claimant’s left arm and leg injuries. However, the deputy
found the 2006 motor vehicle accident did not materially aggravate claimant’s 2004 brain injury.
The deputy said claimant was “diagnosed following the accident as having a closed head
injury/concussion,” but that Dr. Mirmirani, who treated claimant throughout the relevant period
and reviewed the emergency room records, testified “there was no significant change in the
claimant’s condition as a result of the accident.” The deputy also noted that Dr. Mirmirani’s was
“the only opinion proffered on the issue” of claimant’s mental status and that his opinion was
entitled to great weight. The deputy concluded claimant’s settlement of his third-party claim did
not support termination of his workers’ compensation benefits because claimant sustained “very
distinct and separate injuries” and the auto accident aggravated only some of those injuries.
Employer filed a request for review, and the commission affirmed the deputy’s decision
with modifications. Although one commissioner concurred to express his opinion regarding the
credibility of some of the evidence, the commission unanimously agreed that Code § 65.2-309
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“mean[s] that [the commission] can determine forfeiture on a body part basis” and rejected
employer’s argument that “any unauthorized compromise of a third-party claim means forfeiture
of all compensation benefits.” The commission affirmed the deputy’s finding, based on the
opinion of claimant’s treating physician, that the motor vehicle accident did not materially
aggravate claimant’s brain injury or change his disability status. The commission agreed with
the deputy that the third-party accident materially aggravated claimant’s left arm injury, such that
the third-party settlement impaired employer’s subrogation rights as to that injury. However, the
commission modified the deputy’s decision as to claimant’s left knee injury, finding claimant did
not injure his left knee in the 2006 auto accident and, thus, that the third-party settlement did not
prejudice employer’s rights as to that injury. 1
Commissioner Williams concurred, agreeing that regardless of the credibility of claimant
and Dr. Mirmirani, the record did not contain sufficient evidence to support a finding that
claimant’s brain injury was aggravated by the 2006 auto accident. Commissioner Williams
opined further that although claimant may have been only partially disabled as a result of his
brain injury, because claimant was under an award for temporary total disability and because “no
basis has been shown which would justify termination of that award, even partial disability
related to the brain injury is sufficient to support reinstatement of [disability] benefits.”
II. ANALYSIS
On appeal, we are guided by the principle that the Workers’ Compensation Act “is highly
remedial,” Henderson v. Cent. Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987), and
“should be liberally construed in favor of the injured employee,” E.I. du Pont de Nemours & Co.
v. Eggleston, 264 Va. 13, 17, 563 S.E.2d 685, 687 (2002). “Although ‘we are not bound by the
1
The commission’s determinations as to claimant’s left arm and left knee are not
contested in this appeal.
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commission’s legal analysis in this or prior cases,’ we give great weight to the commission’s
construction of the Act . . . , and we defer to the commission’s factual findings if supported by
credible evidence in the record.” Bay Concrete Constr. Co. v. Davis, 43 Va. App. 528, 538-39,
600 S.E.2d 144, 150 (2004) (quoting USAir, Inc. v. Joyce, 27 Va. App. 184, 189 n.l, 497 S.E.2d
904, 906 n.l (1998)) (citations omitted).
A. IMPACT OF SETTLEMENT OF THIRD-PARTY SUIT
Employer contends the commission erred in determining that, in the event a claimant
settles a third-party claim without notice to the employer, the Workers’ Compensation Act
permits forfeiture of benefits on a piecemeal, “body part by body part” basis. Employer argues
the commission should instead have concluded that proof of prejudice to employer’s rights from
claimant’s settlement of his claim as to one body part was sufficient prejudice to justify
terminating the award as to all body parts. Employer also contends the commission should have
considered the prejudice that resulted from its loss of the ability to investigate the third-party
accident and the issue of causation in a timely fashion after that accident. Our examination of
the structure and function of the applicable statute and case law leads us to reject these
contentions and to affirm the commission’s unanimous interpretation of the statute.
Code § 65.2-309 provides in relevant part as follows:
A claim against an employer under this title for injury . . . shall
create a lien on behalf of the employer against any verdict or
settlement arising from any right to recover damages which the
injured employee . . . may have against any other party for such
injury . . . , and such employer also shall be subrogated to any such
right and may enforce, in his own name or in the name of the
injured employee . . . , the legal liability of such other party.
Code § 65.2-309(A). In short, “an employer is subrogated to the rights of an employee against
any other party causing an injury . . . for which the employer is required to provide compensation
under the [Act].” Green v. Warwick Plumbing & Heating, 5 Va. App. 409, 411, 364 S.E.2d 4, 6
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(1988). The purpose of the statute is to give the injured employee “an opportunity to obtain one
full recovery [while preventing] him from receiving a double recovery for his injuries.” Noblin
v. Randolph Corp., 180 Va. 345, 359, 23 S.E.2d 209, 214 (1942). “The right of subrogation here
does not depend upon equitable principles . . . . It is purely statutory and arises when the
conditions specified in the statute are met.” Stone v. George W. Helme Co., 184 Va. 1051,
1059-60, 37 S.E.2d 70, 73 (1946).
In determining the subrogation rights of the employer, “[n]o distinction is made between
the liability of a third [party] who causes an original injury and one who causes an aggravation of
that injury.” Green, 5 Va. App. at 411, 364 S.E.2d at 6. This is so because “[a]n employee is
entitled to continued compensation, in spite of an intervening accident, if the intervening
accident exacerbates the original injury.” Id. Compare id. with Celenese Fibers Co. v. Johnson,
229 Va. 117, 120, 326 S.E.2d 687, 690 (1985) (noting that “[w]here . . . causal connection
between an industrial accident and disability has been established by the entry of an award, an
employer has a right to apply for termination of benefits upon an allegation that the effects of the
injury have fully dissipated and the disability is the result of another cause” (emphasis added)).
Because “an employee is entitled to compensation from his or her employer [for the
exacerbation], . . . [the] employer is subrogated to the rights of its employee against a third party
who injures the employee.” Green, 5 Va. App. at 411-12, 364 S.E.2d at 6. Just as in the case of
a single, “unitary” accident, this principle assures the claimant will receive compensation for his
injury but will not receive a double recovery.
“[T]o protect the employer who may be required to provide . . . workers’ compensation
benefits [to the employee injured due to third-party negligence], [the Supreme Court has held
that] the employee may not pursue his common law remedy [in the third-party matter] in such a
manner or settle his claim to the prejudice of the employer’s subrogation right and thereafter
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continue to receive worker’s compensation benefits.” Wood v. Caudle-Hyatt, Inc., 18 Va. App.
391, 397, 444 S.E.2d 3, 7 (1994); see Stone, 184 Va. at 1058, 37 S.E.2d at 73 (citing Noblin, 180
Va. at 359, 23 S.E.2d at 214); see also Safety-Kleen Corp. v. Van Hoy, 225 Va. 64, 69-71, 300
S.E.2d 750, 753-54 (1983). “The penalty for impairing the employer’s right may be loss of the
employee’s right to compensation benefits. But, where impairment is claimed, to successfully be
relieved of its liability to pay compensation benefits, the burden is upon the employer to show
that the employee prejudiced the employer’s right.” Overhead Door Co. v. Lewis, 22 Va. App.
240, 243, 468 S.E.2d 700, 701 (1996). Whether the employer has shown prejudice is a question
of fact. White Elec. Co. v. Bak, 22 Va. App. 17, 24, 467 S.E.2d 827, 830 (1996); Newport News
v. Blankenship, 10 Va. App. 704, 708, 396 S.E.2d 145, 147 (1990).
Where the compensable injury and the third party claim arise out of a single, “unitary”
accident, manifestly the injuries incurred are the same. Where a claimant injured under such
circumstances accepts a sum of money “in consideration of which he execute[s] a full and
complete release of all of his claims against [the third-party tortfeasor]” without the knowledge
or participation of the employer, “the employee . . . completely destroy[s] by his own voluntary
act” the employer’s “statutory right of subrogation,” thereby constituting the required showing of
prejudice to the employer. Stone, 184 Va. at 1060, 37 S.E.2d at 74.
Where, as here, the third-party negligence occurs at a separate time from the original
compensable industrial accident, the calculus changes. As set out above, the employer must pay
continuing compensation for the original injury and any exacerbation, and to the extent the
original injury and the subsequent injury are the same “injury” for purposes of Code § 65.2-309,
employer is subrogated to the claimant’s rights against the third-party tortfeasor in order to
prevent the claimant from receiving a double recovery. Green, 5 Va. App. at 411-12, 364 S.E.2d
at 6. However, because the injuries occurred at separate times, the employer is not entitled to an
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inference that the new injury and the original injury are the same injury, and the burden remains
on the employer to show the settlement prejudiced the employer’s right of subrogation, if any,
see Lewis, 22 Va. App. at 243, 468 S.E.2d at 701.
Where the evidence supports a finding that an original compensable injury was
exacerbated by a third-party injury, the commission does not err in concluding that because “the
employer’s right to subrogation [is] limited to benefits arising as a result of the exacerbation of
the original injury and [does] not include benefits attributable only to the original injury,” the
unauthorized settlement compels termination “only [of] those benefits arising as a result of the
exacerbation of the original injury.” Green, 5 Va. App. at 413 & n.1, 364 S.E.2d at 7 & n.1. In
addition, where an original injury is exacerbated but the commission finds the exacerbation was
“short-lived,” the evidence supports a finding that the employer has failed to establish the
prejudice necessary to compel termination of benefits even for the exacerbation. Blankenship,
10 Va. App. at 708-09, 396 S.E.2d at 147-48 (involving the commission’s finding that an
eleven-day exacerbation did not prejudice the employer); see Bak, 22 Va. App. at 23, 467 S.E.2d
at 830 (applying Blankenship to a brief exacerbation where the commission found the employer
failed to prove prejudice).
Finally, we conclude, as claimant reasons, that if settlement of a third-party claim
involving what has been shown to be merely a temporary aggravation of an original compensable
industrial injury is insufficient to show prejudice justifying termination of the underlying award,
see Green, 5 Va. App. at 413 & n.1, 364 S.E.2d at 7 & n.1; see also Bak, 22 Va. App. at 23, 467
S.E.2d at 830; Blankenship, 10 Va. App. at 708-09, 396 S.E.2d at 147-48, settlement of a
third-party claim for an injury never shown to be any type of aggravation has not been proven to
prejudice the employer as to employer’s liability for the original injury. Any other conclusion
would subvert the principle that the Act is to be construed liberally to benefit injured employees.
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See, e.g., Eggleston, 264 Va. at 17, 563 S.E.2d at 687. Thus, the statutory framework, which
refers to “such injury,” Code § 65.2-309(A), as well as the case law interpreting it, supports the
commission’s implicit conclusion that we must examine the impact of the third-party settlement
on each originally injured body part individually; the language does not support aggregating all
injured body parts and concluding the settlement of a subsequently arising third-party claim
involving injury to one of those body parts prejudices employer as to all of them.
Employer contends it was prejudiced as to the entire ongoing award for claimant’s
compensable 2004 brain injury because it did not receive notice of the 2006 auto accident at a
time allowing it to investigate the impact of that accident on his compensable brain injury before
claimant executed the settlement. This argument begs the question, for employer was
prejudiced, as that term is used in the context of Code § 65.2-309, by the lack of opportunity to
investigate prior to the third-party settlement and to participate in that settlement only if the 2006
auto accident caused more than a temporary aggravation of claimant’s 2004 compensable
traumatic brain injury. See Green, 5 Va. App. at 413 & n.1, 364 S.E.2d at 7 & n.1; see also Bak,
22 Va. App. at 23, 467 S.E.2d at 830; Blankenship, 10 Va. App. at 708-09, 396 S.E.2d at 147-48.
Employer was equally free to investigate the question of causation of claimant’s ongoing brain
problems after claimant settled the auto accident claim. If employer could prove settlement
prejudiced its right of subrogation as to some or all of the ongoing award, it was entitled under
Code § 65.2-309(D) to seek (a) termination of the award and/or (b) credit or a civil judgment for
any excess compensation claimant received.
Further, to the extent employer contends the delay itself constituted sufficient
constructive prejudice to its rights, without proof that it suffered actual prejudice in the form of
an affirmative impairment of any subrogation rights it may have had, we disagree. The notice
Code § 65.2-309 has been held to require is notice prior to entering into a settlement, see Stone,
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184 Va. at 1058-60, 37 S.E.2d at 73-74; Wood, 18 Va. App. at 397-98, 444 S.E.2d at 7-8, not
notice within any particular period of time following the happening of the accident or the
occurrence of a new injury or aggravation. Here, although employer bore the burden of proving
prejudice, it failed to allege or offer any evidence intended to show when it or its third-party
claims administrator became aware of the 2006 motor vehicle accident, and as detailed below,
the record supports a finding that employer, through its third party administrator, had at least
constructive notice of the accident within ten weeks of when it occurred.
Pursuant to the Act, an employer is entitled to receive copies of all relevant records of a
medical provider before paying the bill for a particular treatment or office visit. See Code
§ 65.2-604 (providing an employer is entitled to reports for compensable treatment upon
request); Workers’ Comp. Comm’n Rule 4.2 (providing that a medical care provider attending an
injured employee shall, upon request, furnish a copy of “[a]ll medical reports relevant to a
claim,” including “[c]umulative progress notes” and “reports”); see also Wiggins v. Fairfax Park
Ltd. P’ship, 22 Va. App. 432, 442-43, 470 S.E.2d 591, 596-97 (1996) (recognizing the statutory
duty of medical providers to produce a claimant’s records upon request of the employer and
noting a claimant may be required to select a new health care provider if an existing provider
refuses to comply with a valid request); Hassell v. Arlington Co. Human Servs., 79 O.W.C. 141,
available at 2000 WL 1517897 (Va. Workers’ Comp. Comm’n June 29, 2000) (holding an
employer is released from the responsibility of paying a provider for medical treatment if the
provider fails to provide medical reports within a reasonable time); Smith v. Mullins Coal Co.,
78 O.W.C. 202, available at 1999 WL 1006903 (Va. Workers’ Comp. Comm’n Oct. 19, 1999)
(holding pursuant to Commission Rule 4.2 “that the parties have a right to receive and review all
medical documents which are or may be related to the claimant’s condition” (emphasis added)).
Here, when claimant saw Dr. Mirmirani on May 17, 2006, for his compensable 2004 head injury,
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claimant told Dr. Mirmirani about his April 18, 2006 auto accident. Dr. Mirmirani included
information about the auto accident in his office note of that date. On June 23, 2006, about nine
weeks after claimant’s auto accident, employer paid Dr. Mirmirani’s bill for that office visit.
Further, an affidavit from employer’s third party administrator indicates it paid this particular
bill, as well as numerous others, “[on employer’s behalf] for the claimant’s ‘necessary medical
attention’ that was causally related to the claimant’s lifetime medical Award on this claim.” This
evidence supports a finding that as of June 23, 2006, employer’s agent had reviewed
Dr. Mirmirani’s office note of May 17, 2006, and, thus, had at least constructive notice of
claimant’s April 18, 2006 auto accident and claimant’s reports to Dr. Mirmirani indicating his
head and back may have been involved.
Even assuming employer lacked constructive notice of the 2006 motor vehicle accident
until shortly before it filed its February 2008 application for change in condition (based on its
allegation that claimant sustained additional injury to his compensable lower back problem) or
lacked actual notice of the possibility that claimant reinjured his brain in the 2006 motor vehicle
accident until the commission pointed this out in its opinion rendered in April 2009, employer
still had constructive notice of the auto accident and related injuries within two years and actual
notice within three years. If claimant had waited this same period of time, until 2008 or 2009, to
settle his auto accident claim and had consulted employer immediately prior to entering into the
settlement, he would have acted in compliance with the statute as interpreted to date by the
Supreme Court, and yet employer would be no better off than it is here for purposes of
investigating causation. Employer cites no authority, beyond the general principle that a
claimant may not settle a third-party claim in a manner that prejudices an employer’s subrogation
rights, in support of its argument that it was entitled to actual notice of a subsequent accident that
the commission found did not, in fact, impair its subrogation rights, and we are aware of no such
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authority. Compare Code § 65.2-711 (requiring a claimant to report to the commission any
change in his residential address); Code § 65.2-712 (requiring a claimant to report, inter alia, a
return to employment or increase in earnings); Code § 65.2-1206 (providing that where benefits
are being paid by the Uninsured Employer’s Fund (the fund), “[a]ny payment to a claimant . . .
which is later determined by the Commission to have been procured by fraud, mistake or an
unreported change in condition, shall be recovered from the claimant and credited to [the
fund]”). The right, upon proof of prejudice, to seek termination of an award or credit or a civil
judgment for benefits paid under it, rather than the guarantee of an opportunity to investigate in
advance of any settlement, is the remedy the Supreme Court has determined is provided by the
Act. See Stone, 184 Va. at 1058, 37 S.E.2d at 73; Lewis, 22 Va. App. at 243, 468 S.E.2d at 701.
Furthermore, to the extent employer claims its investigation was prejudiced because
Dr. Mirmirani learned claimant’s workers’ compensation benefits were in jeopardy and
thereafter slanted his medical opinion to benefit claimant, neither the Act nor the case law
provides that a medical provider’s mere knowledge of the status of a workers’ compensation
claim is a bar to a claimant’s receipt of ongoing benefits. The statutory scheme provides,
instead, that the commission determines the credibility of the parties’ witnesses as a finding of
fact, see, e.g., Dep’t of Corr. v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986), which
the commission did in this case, see discussion infra Part II.B.
Thus, we turn to the question of the sufficiency of the evidence to support the
commission’s factual findings underlying its conclusion that employer failed to prove the
third-party settlement itself, rather than any right to contemporaneous notice of the accident,
prejudiced employer’s subrogation rights as to his brain injury.
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B.
IMPACT OF CLAIMANT’S AUTO ACCIDENT ON HIS BRAIN INJURY
As previously indicated, whether employer has shown it was prejudiced by claimant’s
settlement of his 2006 auto accident claim is a question of fact. See Bak, 22 Va. App. at 24, 467
S.E.2d at 830; Blankenship, 10 Va. App. at 708, 396 S.E.2d at 147. A determination regarding
the causation, nature, and extent of disability is also a question of fact. See, e.g., Ga. Pac. Corp.
v. Dancy, 17 Va. App. 128, 133-34, 435 S.E.2d 898, 901 (1993). Such determinations need not
be based solely on medical evidence. See Dollar Gen’l Store v. Cridlin, 22 Va. App. 171, 176,
468 S.E.2d 152, 154 (1996) (applying principle in context of determining causation). Such facts
may be proved by either direct or circumstantial evidence, including medical evidence or “the
testimony of a claimant.” Id.
“‘As the factfinder, the commission is charged with the responsibility of resolving
questions . . . of controverted facts,’” including questions of witness credibility. Metro. Wash.
Airports Auth. v. Lusby, 41 Va. App. 300, 312, 585 S.E.2d 318, 323 (2003) (quoting Va. Empl.
Comm’n v. Gantt, 7 Va. App. 631, 635, 376 S.E.2d 808, 811 (1989)). Decisions of the
commission as to questions of fact are conclusive and binding upon this Court if supported by
credible evidence. Code § 65.2-706(A); see Manassas Ice & Fuel Co. v. Farrar, 13 Va. App.
227, 229, 409 S.E.2d 824, 826 (1991).
The opinion of the treating physician is entitled to great weight, although the commission
is not required to accept it, Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339
S.E.2d 570, 572 (1986), 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,’” Georgia-Pacific Corp.
v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 269 (2000) (quoting C.D.S. Constr. Servs. v.
Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236, 240 (1978)). In determining the credibility of any
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witness, the fact finder may accept the parts of a witness’ testimony it finds believable and reject
other parts as implausible. Moyer v. Commonwealth, 33 Va. App. 8, 28, 531 S.E.2d 580, 590
(2000) (en banc). “The fact that a witness makes inconsistent statements . . . does not render his
testimony . . . unworthy of belief. . . . It is firmly imbedded in the law of Virginia that the
credibility of a witness who makes inconsistent statements . . . on the stand is a question . . . for
the . . . trier of the facts . . . .” Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d
258, 259 (1989).
Here, the record supports the commission’s finding that employer failed to prove it was
prejudiced by the third-party settlement because the evidence, viewed in the light most favorable
to claimant, established that claimant (1) suffered no exacerbation of his compensable 2004 brain
injury in the 2006 auto accident and (2) continued to be temporarily and totally disabled as a
result of the 2004 brain injury after the 2006 auto accident.
Dr. Mirmirani, claimant’s treating physician for his compensable 2004 traumatic brain
injury (TBI), was uniquely suited to render an opinion about claimant’s condition both before
and after the 2006 auto accident. Dr. Mirmirani began treating claimant in 2004 while he was
hospitalized and undergoing extensive rehabilitation for his TBI. He saw claimant almost
monthly for more than a year preceding the 2006 auto accident, including conducting an office
visit with claimant just a week before the auto accident occurred. He also saw claimant regularly
after the accident, including three months in succession beginning about four weeks after the
accident, and then, after a ten-week break during which claimant traveled out-of-state to see his
ailing mother, ten to twelve times per year for the next three years thereafter.
Dr. Mirmirani reviewed his own records and examined the records of claimant’s
treatment in the emergency room immediately following his 2006 auto accident before opining
“there was no substantiation that [claimant] suffered from an additional head injury” in the 2006
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auto accident. He also noted claimant’s “psychiatric and intellectual” condition and symptoms
had undergone no substantial change during his more than five years of treating claimant and
that those symptoms remained consistent with claimant’s 2004 TBI.
Dr. Mirmirani opined shortly before the 2006 auto accident that claimant’s “mental
energy [was] adequate” but noted “he still complain[ed] of tiredness during the daytime,” still
required medication to sleep at night, and continued to suffer from memory dysfunction and
cognitive impairment, for which he also took medication. Claimant was continuing to
experience intermittent headaches, as well. Dr. Mirmirani also explained that having had a TBI
adversely affects one’s ability to cope with any sort of stress.
Although the record contained conflicting evidence concerning whether claimant said he
hit his head during the auto accident, Dr. Mirmirani explained that even if claimant had
experienced “a little bang” in the accident, that “little bang,” standing alone, would have been
insufficient to aggravate his 2004 TBI. Dr. Mirmirani explained that to constitute a new head
injury of a caliber sufficient to aggravate his 2004 TBI, claimant would have to have had at least
a concussion or a period of amnesia. To the contrary, opined Dr. Mirmirani, the emergency
room records—which showed no contusions or abrasions to the head and included an MRI of the
head that also showed “nothing”—contained “no clinical presentation that [claimant] suffered
any type of injury to the brain” in the 2006 auto accident.
The emergency room records themselves, viewed in the light most favorable to claimant,
also do not substantiate such an injury. The emergency medical technician who responded to the
scene detected “no marks or swelling” on claimant’s forehead and determined his pupils,
although one was slightly larger than the other, were reactive to light. The hospital nursing
record and physician’s record both indicated claimant suffered no visible head trauma. The
nurse recorded claimant had a history of “TBI 2 yrs ago,” giving him a “[questionable] baseline.”
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Although the nurse indicated claimant exhibited some “confus[ion]” or “memory loss” as to time
“[secondary to] TBI,” the nurse did not indicate that the TBI referenced was a new one rather
than the TBI of “2 yrs ago” noted under past history. Finally, the physician’s record indicates
claimant was fully alert and oriented and contains no diagnosis of a concussion or other head
injury requiring medical attention. Although claimant apparently reported head pain to both the
nurse and examining physician, he also testified he had a headache that began to develop that
day shortly before the accident occurred. Thus, nothing in the emergency room record compels
the conclusion that the commission erred in accepting Dr. Mirmirani’s opinion that claimant did
not aggravate his 2004 TBI in the 2006 auto accident.
Finally, claimant reported to Dr. Singh, whom he saw about six weeks after the accident,
that his symptoms from his post-concussion syndrome “remain[ed] the same without any
change” following his 2006 auto accident, and claimant gave testimony to the same effect at the
hearing before the deputy commissioner.
Dr. Mirmirani opined that “[w]ithin the first two years, up to two years [after a TBI] you
have a good chance” of “recovery” but that claimant “never intellectually and emotionally
recovered” from the 2004 TBI “to the level that he could be gainfully employed.” Mirmirani
wrote, “It is my professional opinion that all of his current residual intellectual and emotional
difficulties and deficiencies are related to his original traumatic brain injury in 2004,” and he
stated further, “[o]verall from my observation, his clinical presentation, current mental status and
failure to pass even a simple test to become a volunteer, in my opinion he remains totally
disabled and unable to be gainfully employed.”
Employer contends the evidence in the record of claimant’s employment and job search
history before and after the 2006 auto accident impeaches Dr. Mirmirani’s opinion that
claimant’s condition remained substantially unchanged after the auto accident. It points to
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evidence that before the 2006 accident, claimant had “adequate” energy; was “continuing to
improve”; had returned to work for employer with only a minimal restriction preventing him
from working evenings or weekends; and was seeking, with Dr. Mirmirani’s encouragement, a
new job as a private detective. After the 2006 auto accident, posits employer, claimant’s
condition worsened; Dr. Mirmirani first opined that, as of October 18, 2006, claimant’s
combined disabilities rendered him totally disabled; and claimant was unable to pass a simple
test to work as a volunteer. Employer’s argument fails because it views the evidence in the light
most favorable to employer rather than to claimant.
The evidence, viewed in the light most favorable to claimant, established that
Dr. Mirmirani never opined claimant was intellectually or cognitively capable of returning to his
pre-injury employment or any other job. A neuropsychologist, who examined claimant on only
one occasion, rather than treating physician Dr. Mirmirani, released claimant to return to his
pre-injury job. While claimant worked in his pre-injury position for about six months from
December 2004 to June 2005, he testified his cognitive and memory deficits were an ongoing
problem and that his co-workers gave him only the easiest tasks and “covered for him.” Also,
Dr. Mirmirani never released claimant to be on call for night and weekend work as his employer
had desired, because of both claimant’s problems with fatigue and his need to have close
supervision in order to perform even the easiest tasks from his pre-injury work. Finally, the
evidence established claimant was terminated from that employment in June 2005 “because he
[did] not fit his job description,” at which time employer resumed paying temporary total
disability benefits.
Claimant remained eager and optimistic when he began working with the vocational
rehabilitation company hired by employer, but he reported finding it “quite difficult” to learn
new technology in his field, and Dr. Mirmirani “suggested” that claimant might seek training “in
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a less complicated field.” When claimant also “found it extremely difficult” to comprehend
“simpler” “materials in electronics,” they discussed the field of private detection. When
employer questioned why claimant could not work as a computer technician or electrician,
Dr. Mirmirani emphasized claimant’s cognitive impairment. He recommended employer obtain
additional psychological testing to confirm claimant’s cognitive impairment, but the records
contain no indication that employer ever approved or sought such testing. Thereafter, although
claimant completed a two-week course to become a private detective, successfully passed the
open-book test prior to his 2006 traffic accident, and was motivated to try to obtain such a job,
the evidence supported a finding that he simply was not capable of working as a private detective
before or after his 2006 auto accident. Claimant explained that he was able to pass the
open-book test because the day before it was given, his instructor dictated detailed notes to his
students, including the page numbers in the book on which information about various topics
could be found. Claimant testified that when he checked with potential employers, he learned
available positions would require work early in the morning or late at night, times he was not
able to work due to his medication and sleep issues. Finally, claimant testified that the problems
he exhibited with poor spelling and sentence structure on a volunteer test he took early in 2008
had existed since the 2004 compensable industrial injury. He stated further that the symptoms
from his 2004 TBI did not change in any way following the 2006 auto accident and that he had
the same problems functioning at the time of the November 2009 hearing before the deputy that
he had when he tried to return to work with employer in late 2004 and 2005. Dr. Mirmirani also
expressly opined that claimant “never intellectually and emotionally recovered to the level that
he could be gainfully employed.”
To the extent employer argues claimant and Dr. Mirmirani made inconsistent statements,
none of these claimed contradictions rendered their testimony inherently incredible. Thus, it was
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within the province of the commission, as the finder of fact, to determine whether to credit their
testimony and, if so, which aspects of it. The testimony of claimant and opinion of
Dr. Mirmirani that claimant’s symptoms from his traumatic brain injury did not change in any
way following the 2006 auto accident were not inherently incredible, and the commission’s
decision to credit those opinions was not plainly wrong.
III.
For these reasons, we hold the evidence supports the commission’s finding that
claimant’s 2006 auto accident did not materially aggravate his compensable 2004 brain injury
and, thus, that the commission correctly concluded employer has failed to establish prejudice as
to that injury. Accordingly, we affirm the commission’s refusal to terminate benefits for
claimant’s traumatic brain injury.
Affirmed.
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