COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
HUFFMON RAY ELLIOTT
MEMORANDUM OPINION *
v. Record No. 2975-97-3 PER CURIAM
MAY 12, 1998
JAMES L. NEIGHBORS AND
ERIE INSURANCE EXCHANGE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Huffmon Ray Elliott, pro se, on brief).
(Dale W. Webb; Monica L. Taylor; Gentry,
Locke, Rakes & Moore, on brief), for
appellees.
Huffmon Ray Elliott ("claimant") appeals a decision of the
Workers' Compensation Commission ("commission"). Claimant raises
over thirty-five questions presented in his brief. On appeal,
this Court will not consider the questions raised by claimant in
his brief which were not disputed before the commission and which
did not involve issues within the commission's jurisdiction. The
questions decided by the commission and which are properly before
this Court are as follows: Whether the commission erred in (1)
finding that claimant unjustifiably refused to undergo an
independent medical examination with Dr. Robert Brown; (2)
upholding a stipulation permitting employer a credit for payments
voluntarily made to claimant; (3) upholding a stipulation that a
prior hearing transcript would not be made part of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidentiary record; (4) awarding $1,250 in attorney's fees to
claimant's former attorney, Zenobia Peoples; and (5) suspending
claimant's award of permanent disability benefits pursuant to
Code § 65.2-503 as of December 2, 1995, the date upon which the
commission awarded claimant temporary total disability benefits.
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. See Rule 5A:27.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Code § 65.2-607(A) provides that an employer may request
that an injured employee undergo a medical examination "at
reasonable times and places, by a duly qualified physician or
surgeon designated and paid by the employer or the Commission
. . . . [N]o employer may obtain more than one examination per
medical specialty without prior authorization from the
Commission. . . ." If an employee refuses such an examination or
obstructs it, his compensation shall be suspended until such
refusal or objection ceases. See Code § 65.2-607(B).
Dr. Brown's November 7, 1996 letter established that
claimant reported to Dr. Brown on November 7, 1996 for a
scheduled independent psychiatric examination, but he refused to
go through with the examination without his attorney being
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present. Claimant presented no credible evidence to justify his
refusal.
Based upon this record, the commission suspended claimant's
award of compensation effective November 7, 1996. Credible
evidence proved that claimant received appropriate notice of the
examination. Moreover, no evidence showed that employer's
request for the examination pursuant to Code § 65.2-607 was
inappropriate. The fact that employer had already had claimant
examined by an independent ophthalmologist with respect to his
eye injury did not preclude employer from requesting an
independent examination by a psychiatrist with respect to
claimant's psychological problems.
Credible evidence proved that employer was entitled to
request an independent psychiatric examination by Dr. Brown
pursuant to Code § 65.2-607 and that claimant failed to present
credible evidence to justify his refusal to undergo the
examination. Accordingly, the commission did not err in
suspending claimant's compensation effective November 7, 1996.
II.
Factual findings made by the commission will be upheld on
appeal if supported by credible evidence. See James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
Credible evidence contained in the hearing transcript
established that the parties stipulated that employer would be
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allowed a credit for benefits voluntarily paid to claimant. Code
§ 65.2-520 specifically allows such a credit. Claimant was
present at the hearing and represented by counsel, yet voiced no
objection to this stipulation. Claimant appears to argue that
his attorney may not have handled his case appropriately.
However, this Court is not the proper forum for adjudicating any
disputes claimant may have with the manner in which his attorney
handled his case.
Based upon this record, we cannot find that the commission
erred in ruling that the stipulation and credit were proper and
should not be disturbed.
III.
Credible evidence in the hearing transcript also reflects
that the parties stipulated that a January 6, 1997 transcript of
a prior hearing would not be included in the evidentiary record
of the July 10, 1997 hearing. Again, claimant was present at the
hearing and represented by counsel. The stipulation was proper
and binding upon claimant. Moreover, the commission reviewed the
January 6, 1997 transcript and found that it did not contain
testimony that would change the result of the case. This finding
is supported by the record. Accordingly, the commission did not
err in ruling that the January 6, 1997 hearing transcript was not
part of the record.
IV.
"Code § 65.1-102 [now Code § 65.2-714] provides that the
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fees of attorneys shall be subject to approval and award of the
Commission." Hudock v. Industrial Comm'n, 1 Va. App. 474, 477,
340 S.E.2d 168, 171 (1986). The commission awarded $1,250 in
attorney's fees to claimant's former attorney, Zenobia Peoples.
The commission based this award upon its findings that the
voluminous record showed that claimant's attorney addressed
multiple issues and represented claimant in a lengthy hearing.
These findings are amply supported by the record. Accordingly,
the commission did not abuse its discretion in fixing the fee at
$1,250.
V.
Code § 65.2-503 provides that permanent disability benefits
"shall be payable after payments for temporary total incapacity
pursuant to § 65.2-500." Accordingly, the commission did not err
in suspending claimant's award of permanent disability benefits
effective December 2, 1995, the date his award of temporary total
disability benefits commenced.
For these reasons, we affirm the commission's decision.
Affirmed.
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