COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

TIDEWATER CONSTRUCTION CORPORATION 

and 

LIBERTY MUTUAL INSURANCE COMPANY MEMORANDUM OPINION*

 BY JUDGE JOSEPH E. BAKER 

v. Record No. 0806-96-1 NOVEMBER 12, 1996 

 

WILLIAM H. PRETLOW 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 R. Ferrell Newman (Thompson, Smithers, Newman & 

Wade, on brief), for appellants. 

 Gerald G. Poindexter (Poindexter & Brown, on 

brief), for appellee. 

 Tidewater Construction and Liberty Mutual Insurance Company 

(jointly referred to herein as employer) appeal from a decision 

of the Workers' Compensation Commission (commission) contained in 

a review opinion issued on March 18, 1996. In that opinion, the 

commission found that William H. Pretlow (claimant) was 

incompetent at the time he compromised his claim for injuries 

received on February 1, 1991 during the course of his employment 

with employer. Employer first contends that the commission erred 

when it held that retired Deputy Commissioner Yates (Yates) was 

wrongfully permitted to testify before fellow Deputy Commissioner 

Hayes concerning issues Yates had considered in his capacity as a 

deputy commissioner prior to his retirement. In relevant part, 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

Code § 19.2-271 provides: 

 Certain judicial officers incompetent to 

testify under certain circumstances. -- No 

judge shall be competent to testify in any 

criminal or civil proceeding as to any matter 

which came before him in the course of his 

official duties. 

 No clerk of any court, magistrate, or 

other person having the power to issue 

warrants, shall be competent to testify in 

any criminal or civil proceeding, except 

proceedings wherein the defendant is charged 

with perjury, as to any matter which came 

before him in the course of his official 

duties. 

We hold that a deputy commissioner employed by the commission is 

an "other person," prohibited by that code section from 

testifying as to any matter which came before him in the course 

of his official duties. Therefore, we hold that Yates was 

prohibited from testifying in the hearing held by Hayes, and that 

the commission did not err when it declined to consider Yates' 

testimony. 

 Employer further asserts that the commission erred in 

finding that there existed "clear and convincing" evidence of 

claimant's incompetence at the time he executed a settlement 

agreement approved by Yates in an order entered on October 9, 

1991. 

 On appellate review, the Court will construe the evidence in 

the light most favorable to the prevailing party below. States 

Roofing Corp. v. Bush Constr. Corp., 15 Va. App. 613, 616, 426 

S.E.2d 124, 126 (1993) (citing Crisp v. Brown's Tysons Corner 
- 3 - 

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986)). 

"If there is evidence, or reasonable inferences can be drawn from 

the evidence, to support the commission's findings, they will not 

be disturbed on review, even though there is evidence in the 

record to support a contrary finding." Food Lion, Inc. v. Lee, 

16 Va. App. 616, 619, 431 S.E.2d 342, 344 (1993) (quoting Morris 

v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 

S.E.2d 876, 877 (1986). 

 On October 29, 1991, relatives of claimant filed a petition 

with the commission requesting that the commission vacate the 

order approving the October 9, 1991 settlement. The commission 

granted that request. 

 The record before us discloses that claimant approved a 

settlement of his compensation claim presented to him by Liberty 

Mutual Insurance Company's claims adjuster, George Townsend. 

Approximately two weeks subsequent to the approval of the 

settlement, claimant was discovered by his nephew, Al Bell 

(Bell), to have suffered a psychological breakdown. Bell found 

the uncashed settlement check in claimant's apartment. Claimant 

did not understand the terms of the settlement and was concerned 

he had done something wrong. Claimant was hospitalized in a 

"psychotic state" and came under the care of Dr. James A. Shield, 

a psychiatrist. In claimant's records, Dr. Shield noted: 

 History is obtained from nurse Connerrn [sic] 

that his grooming had deteriorated in the 

last three months . . . . He's been reclusive 

for years, he only works on temporary jobs at 

times, he does not have any immediate wife or 
- 4 - 

children and has really been mentally 

abnormal for many years. 

 Dr. Shield offered a diagnosis of schizophrenia as well as 

schizoid personality. He noted claimant's massive obesity, 

hypertension, and that claimant's "[h]ighest level of adaptive 

function in the past year" was considered to be "[p]oor," with 

"severe, catastrophic" psychosocial stressors. At a later 

hearing Dr. Shield testified, "I would not trust him 

independently to be a contractor on a sophisticated legal 

question in the month prior to his admission." 

 Based upon a consultative psychiatric evaluation of claimant 

on August 5, 1992, Dr. Fred C. Dalton diagnosed paranoid 

schizophrenia and added that claimant's functioning level was the 

same over the past year although practically zero when 

 hospitalized. Dr. Merritt W. Foster, Jr., M.D., a psychiatrist 

who reviewed claimant's records but did not talk to or examine 

him, concluded that "[claimant] would have been able to 

understand the nature and consequences of his actions up to a 

very brief period, probably less than a week, preceding his 

psychiatric hospitalization on October 22, 1991." 

 The conflicting evidence was decided favorably to claimant 

and, if sufficient to support the decision of the commission, is 

binding on appeal. See Penley v. Island Creek Coal Co., 8 Va. 

App. 310, 318, 381 S.E.2d 231, 236 (1989); see also Cafaro 

Constr. Co. v. Strother, 15 Va. App. 656, 660, 426 S.E.2d 489, 

491-92 (1993); City of Norfolk v. Lillard, 15 Va. App. 424, 
- 5 - 

429-30, 424 S.E.2d 243, 246 (1992). 

 We hold that there is sufficient credible evidence to 

support the commission's decision. Accordingly, we affirm 

its decision to vacate the October 9, 1991 order. 

 Affirmed.