COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
CHAPMAN LUMBER COMPANY, INC. AND
WOOD PRODUCTS OF VIRGINIA GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION * BY
v. Record No. 1024-97-1 JUDGE JAMES W. BENTON, JR.
NOVEMBER 18, 1997
GREGORY W. GREENE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Bradford C. Jacob (Taylor & Walker, P.C., on
brief), for appellants.
Randolph A. Raines, Jr. (Ferguson, Rawls,
MacDonald, Overton & Grissom, P.C., on
brief), for appellee.
Chapman Lumber Company, Inc. appeals the Workers'
Compensation Commission's award of benefits to Gregory W. Greene
for his work-related injury by accident. Chapman Lumber contends
that the commission erred (1) in admitting hearsay evidence
concerning a doctor's referral; (2) in finding Chapman Lumber
responsible for certain medical treatment; and (3) in awarding
temporary total disability benefits from March 20, 1996 and
continuing. For the reasons that follow, we affirm the award.
I.
Upon appellate review, this Court must construe the evidence
in the light most favorable to the party prevailing below. In
addition, we must uphold the commission's findings of fact when
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
they are supported by credible evidence. See Lynchburg Foundry
Co. v. Goad, 15 Va. App. 710, 712, 427 S.E.2d 215, 217 (1993);
Jensen Press v. Ale, 1 Va. App. 153, 157, 336 S.E.2d 522, 524
(1985).
The evidence proved that Greene was employed by Chapman
Lumber as the operator of a front-end loader. On April 5, 1995,
Greene was climbing onto the loader when he slipped and fell to
the ground, landing on a piece of pine bark and "snapping" his
knee. Greene told a supervisor about the injury but said that he
would continue to work because he could not afford to take any
time off.
Three weeks later, Greene called William Chapman, the
president of Chapman Lumber, and told Chapman that Greene's knee
would not bear his weight. Chapman gave Greene the names of two
doctors. When Greene called the first doctor's office, he was
informed that the doctor would not be able to see him for ten
days. Greene called the second doctor and was told that the
doctor would be out for one to two weeks. Upon receiving these
responses, Greene again called Chapman. Chapman told Greene that
if he was "in that much pain," he should use his health insurance
and go to the emergency room.
Greene went to a hospital emergency room where he was
referred to Dr. Smith, an orthopedic surgeon. Dr. Smith examined
Greene and ordered an MRI. After reviewing the MRI, Dr. Smith
diagnosed a peripheral tear of the posterior body of the medial
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meniscus and a possible tear of the anterior cruciate ligament
and recommended surgery. Greene testified that Dr. Smith gave
him a choice of physicians in two locations, Greenville and
Norfolk. When Greene chose Greenville because of transportation
considerations, Dr. Smith referred Greene for surgery to Dr.
Barsanti. Later, upon learning that he would not be able to
obtain transportation to Greenville, Greene testified that he
called Dr. Smith and asked if he could instead go to Dr. Persons
in Suffolk. Greene testified that Dr. Smith told him to take the
referral letter Dr. Smith had written to Dr. Barsanti and give it
to Dr. Persons. At the hearing, the deputy commissioner ruled
that Greene's testimony regarding his telephone conversation with
Dr. Smith about his request to see Dr. Persons was inadmissible
because it was hearsay.
After reviewing the MRI, Dr. Persons performed
reconstructive surgery on Greene's knee on July 11, 1995. On
January 11, 1996 and March 20, 1996, Dr. Persons diagnosed
further complications as a result of the initial injury and
recommended Greene undergo a second arthroscopic surgery in the
summer of 1996. On March 20, Dr. Persons noted that Greene could
not perform "any manual labor until this problem is fixed."
The deputy commissioner ruled that Chapman Lumber was not
responsible for the care rendered by Dr. Persons because no
evidence proved that Dr. Smith referred Greene to Dr. Persons.
The deputy commissioner awarded Greene compensation for temporary
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total disability from April 24, 1995 until March 20, 1996. The
deputy commissioner rendered his decision on September 30, 1996.
Following that decision, the medical reports of Dr. Richard T.
Holden were tendered to the commission. 1
Upon review, the commission ruled that the hearsay testimony
concerning Dr. Smith's referral to Dr. Persons was admissible.
Therefore, the commission held that Dr. Persons' treatment was
authorized and that Chapman Lumber was responsible for the care
rendered by Dr. Persons. The commission also found that Greene
remained totally disabled after March 20, 1996 and awarded him
benefits continuing from that date "until circumstances require a
modification."
II.
Chapman Lumber first contends that the hearsay testimony
concerning Dr. Smith's referral of Greene to Dr. Persons was
inadmissible. We disagree. The principle is well established
that "the Commission is not governed by common-law rules of
evidence and . . . it has discretion to give probative weight to
hearsay statements in arriving at its findings of fact." Chavis
Transfer v. Dicks, 229 Va. 548, 555, 331 S.E.2d 449, 453 (1985).
See also Williams v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566
(1958) (acknowledging that "[t]he . . . Commission is not
1
Dr. Holden operated on Greene's knee in November 1996.
However, the record contains no indication that the commission
accepted Dr. Holden's reports for filing. Indeed, the commission
in its April 11, 1997 review decision did not refer to those
records.
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governed in its decisions by common law rules of evidence, and
. . . that hearsay statements are properly admissible before
it."); Derby v. Swift & Co., 188 Va. 336, 341, 49 S.E.2d 417, 419
(1948) (holding that "[h]earsay evidence is admissible under the
Workmen's Compensation Act and is used as the basis of an
award.").
Consistent with these principles, the commission's rules
provide, in part, as follows:
Except for rules which the Commission
promulgates, it is not bound by statutory or
common law rules of pleading or evidence nor
by technical rules of practice.
The Commission will take evidence at
hearing and make inquiry into the questions
at issue to determine the substantial rights
of the parties, and to this end, hearsay
evidence may be received. (Emphasis added.)
Virginia Workers' Compensation Commission Rule 2.2. On numerous
occasions this Court has referred to the commission's rule
permitting hearsay and has held that hearsay evidence is
admissible before the commission. See Cox v. Oakwood Mining,
Inc., 16 Va. App. 965, 969, 434 S.E.2d 904, 907 (1993); Baker v.
Babcock & Wilcox Co., 11 Va. App. 419, 426, 399 S.E.2d 630, 634
(1990); Franklin Mtg. Corp. v. Walker, 5 Va. App. 95, 99, 360
S.E.2d 861, 864 (1987), aff'd en banc, 6 Va. App. 108, 367 S.E.2d
191 (1988).
The commission, as the finder of fact, was entitled to
determine the weight and credibility of Greene's testimony. See
Uninsured Employer's Fund v. Mounts, 24 Va. App. 550, 559, 484
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S.E.2d 140, 144 (1997). The commission found that Greene's
testimony was credible. Moreover, the evidence proved that Dr.
Persons' medical records contained the referral letter from Dr.
Smith to Dr. Barsanti and contained Dr. Smith's medical reports
concerning Greene. That evidence corroborated Greene's
testimony. Therefore, we cannot say that the commission's
finding was not supported by credible evidence.
Chapman Lumber further argues that when the commission ruled
on review that the hearsay evidence was admissible, the
commission was required to remand the case for additional
evidence. We disagree. The commission found that "apart from
the issue of the truth or falsity of the attributed statement by
Dr. Smith," Greene was authorized to seek treatment with Dr.
Persons. Credible evidence in the record supports that finding.
Furthermore, the record established that Greene disclosed in his
pre-hearing deposition that Dr. Smith referred him for treatment.
The record also established that Dr. Persons treated Greene and
that Dr. Persons' files contained Dr. Smith's reports and
referral letter. Thus, the issue regarding the referral was not
a surprise.
In addition, the commission's rule allowing hearsay is so
clear and firmly established that Chapman Lumber's objection
seeking to bar the evidence was meritless, as was the deputy
commissioner's ruling. Moreover, after the evidentiary hearing,
Chapman Lumber had the opportunity to question Dr. Smith when his
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deposition was taken and failed to pursue the issue of the
referral. We find no error in the commission's ruling.
III.
"Whether the employer is responsible for medical expenses
. . . depends upon . . . whether the treating physician made a
referral to the patient." Volvo White Truck Corp. v. Hedge, 1
Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).
Greene testified that Dr. Smith offered him a choice between
physicians in Norfolk or Greenville. Greene chose Greenville
because of transportation concerns. However, Greene testified
that when his transportation situation changed, prohibiting
travel to Greenville to see Dr. Barsanti, Greene then telephoned
Dr. Smith to ask if he could see Dr. Persons instead. Dr. Smith
told Greene that he should give Dr. Persons the letter Dr. Smith
had written to Dr. Barsanti.
Greene's testimony, along with the corroborating evidence
found in Dr. Persons' files, supports the commission's finding
that Greene received a referral from Dr. Smith to be treated by
Dr. Persons. Therefore, the commission did not err in ruling
that Chapman Lumber was responsible for the medical treatment
provided by Dr. Persons.
IV.
In determining that Greene was entitled to temporary total
disability benefits from March 20, 1996 and continuing, the
commission relied upon Greene's testimony and Dr. Persons'
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medical reports and deposition.
Dr. Persons testified that when he saw Greene on March 20,
1996, Greene still had "a limited range of motion" in his knee
and was "having some painful popping coming from the back of his
knee." Dr. Persons' March 20 report indicated that Greene was
still suffering discomfort and tenderness and was using a cane.
In view of Greene's continuing problems, Dr. Persons recommended
additional surgery and stated, "At this time I don't think he is
able to do any manual labor until this problem is fixed."
Greene's testimony is further evidence in support of the
commission's decision that he was unable to return to his
pre-injury employment after March 20, 1996. At the hearing,
Greene testified that he was having trouble going up and down
steps, his knee was swelling, and he could not straighten his leg
completely. Greene testified that sitting for long periods of
time caused pain and walking on uneven terrain caused sharp pain
in his knee.
For these reasons, we affirm the commission's finding that
Greene was entitled to disability benefits commencing April 24,
1995 and continuing. Because the record does not establish
whether Dr. Holden's reports were accepted for filing by the
commission, we remand the case to the commission for a
determination whether those reports were properly filed and, if
so, whether the "circumstances require a modification" of
benefits after January 23, 1997.
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Affirmed and remanded.
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