COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Fitzpatrick 

Argued at Richmond, Virginia 

STEVE M. HAYES 

 MEMORANDUM OPINION* BY 

v. Record No. 2509-96-2 JUDGE LARRY G. ELDER 

 APRIL 1, 1997 

4 E CORPORATION, ET AL. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Malcolm Parks, III (Steven S. Biss; Maloney, 

Barr & Huennekens, on briefs), for appellant. 

 S. Vernon Priddy, III (Ralph L. Whitt, Jr.; 

Robert F. Moorman; Sands, Anderson, Marks & 

Miller, on brief), for appellees. 

 Steve M. Hayes (appellant) appeals a decision of the 

Workers' Compensation Commission (commission) denying his claim 

for permanent total disability benefits under Code 

§ 65.2-503(C)(1). He contends that the commission erred when it 

admitted and considered a videotape of appellant repairing his 

front door and then relied upon a letter from appellees' medical 

expert interpreting the videotape. He also contends that the 

commission erred when it reversed the deputy commissioner's 

credibility determination regarding the medical experts and 

reweighed the medical evidence. Finally, he contends that the 

evidence was insufficient to support the commission's decision. 

For the reasons that follow, we affirm. 

 

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

designated for publication. 
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 I. 

 FACTS 

 The parties are familiar with the record and this memorandum 

opinion recites only those facts necessary to the disposition of 

the issues before the Court. 

 On November 8, 1983, appellant was severely injured when he 

fell 110 feet off of scaffolding while working. 4 E Corporation, 

his employer, accepted appellant's injuries as compensable. In 

1994, appellant's eligibility for temporary compensation benefits 

expired, and appellant filed a claim for permanent total 

disability benefits pursuant to Code § 65.2-503(C)(1). Appellant 

alleged that his injuries in 1983 had resulted in the loss of use 

of his right arm and leg. 

 On February 28 and October 11, 1995, a deputy commissioner 

held a hearing on appellant's claim. Appellant's medical 

evidence regarding the loss of use of his right arm and leg 

consisted of the de bene esse deposition of Dr. Adelaar, his 

attending physician since his accident, and the testimony of Dr. 

Sinsabaugh, a rehabilitation counselor. Appellees' medical 

evidence on this issue consisted of the testimony of Mr. Kirby, 

the de bene esse deposition of Ms. Knowles, and the written 

opinion letter of Dr. Khokhar. 

 Due to time constraints, the first day of the hearing was 

adjourned at the conclusion of Mr. Kirby's direct examination but 

before his cross-examination. When appellant's counsel moved the 
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deputy commissioner to order appellees' counsel to avoid 

substantive discussions with Mr. Kirby prior to the resumption of 

the hearing, the deputy commissioner said: "All right. In other 

words just stand as you are and don't discuss the case with 

anybody until we come back." 

 On August 8, appellant's counsel wrote a letter to the 

deputy commissioner stating that appellees had obtained a 

videotape of appellant from a private investigator that they 

sought to introduce into evidence when the hearing resumed. 

Appellant's counsel moved to exclude the videotape, and the 

deputy commissioner ruled that he would admit the videotape for 

impeachment purposes only. Both parties proffered letters from 

their respective medical experts stating their analysis of the 

videotape's contents. 

 The parties resumed and concluded the hearing on October 11. 

 On January 30, 1996, the deputy commissioner awarded permanent 

total disability benefits to appellant. Appellees appealed, and 

the full commission reversed. The commission held that the 

videotape was admissible for any purpose and that appellant had 

failed to prove that he had lost the use of his right arm and 

leg. 

 II. 

ISSUES RELATED TO THE VIDEOTAPE 

 Appellant makes several arguments relating to the admission 

of the videotape. First, appellant contends that the commission 
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erred when it admitted the videotape for any purpose because the 

contents of the videotape were not relevant to any issue at the 

hearing. Second, he asserts that the videotape was inadmissible 

because the deputy commissioner had ordered the suspension of all 

discovery at the close of the first day of the hearing. Third, 

appellant contends that the commission inaccurately described the 

contents of the tape. Finally, he argues that he was denied his 

constitutional right to cross-examine Dr. Khokhar regarding his 

analysis of the videotape's contents. 

 A. 

 We hold that the commission did not err when it held that 

the videotape of appellant was admissible. We note that the 

commission was not required to give any deference to the deputy 

commissioner's evidentiary ruling. "An appeal of a deputy 

commissioner's award empowers the [commission] to reexamine all 

of the deputy commissioner's conclusions." Mace v. Merchant's 

Delivery Moving & Storage, 221 Va. 401, 404 n.3, 270 S.E.2d 717, 

719 n.3 (1980) (per curium). In addition, the contents of the 

videotape were relevant to the primary issue at the hearing: 

whether or not appellant had lost the use of his right arm and 

leg. See Pantry Pride-Food Fair Stores v. Backus, 18 Va. App. 

176, 179, 442 S.E.2d 699, 701 (1994). "Evidence is relevant if 

it has any logical tendency to prove an issue in a case." Goins 

v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114, 127, cert. 

denied, U.S. , 117 S. Ct. 222, 136 L.Ed.2d 154 (1996). 
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The videotape depicts appellant using his right arm and walking 

and is therefore relevant to whether or not he had lost the use 

of these extremities. 
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 B. 

 We disagree with appellant's argument that the deputy 

commissioner had ordered the parties to cease discovery at the 

conclusion of the first day of testimony on February 28 and that 

the commission erred when it held that the parties were permitted 

to develop additional evidence in the months between the first 

and second day of the hearing. Our review of the record 

indicates that the parties were not precluded from developing 

additional evidence after the first day of the hearing. The 

record establishes that when the deputy commissioner ordered the 

parties to "stand as you are," the only issue before him was 

whether appellees' counsel could have substantive communications 

with Mr. Kirby before the hearing resumed. In addition, the 

deputy commissioner did not order the record closed, and the 

record reveals no discovery request that prevented the parties 

from developing additional evidence as the hearing progressed. 

Thus, the commission was within its power when it admitted the 

videotape for any purpose. 

 C. 

 We also disagree with appellant's contention that the 

commission inaccurately depicted the contents of the videotape in 

its decision. We have viewed the videotape of appellant and hold 

that the commission's portrayal of its contents was faithful. In 

the scene of appellant at the automatic teller machine, the 

videotape shows appellant using his right hand to retrieve and 
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replace his wallet in his back pocket and walking without a 

"significant" antalgic gait to his car. In the footage of 

appellant repairing his front door, appellant is shown carrying a 

ladder with both hands at arm's length and then standing on the 

second step of the ladder for at least a few minutes. The tape 

shows appellant holding a screwdriver in his right hand and using 

it to pry and scrape at the upper corner of the outside door 

frame. The commission's portrayal of appellant's descent from 

the ladder and then down the porch steps is also accurate. 

 D. 

 Appellant argues that his due process rights were violated 

when the commission relied upon the letter proffered by appellees 

in which Dr. Khokhar analyzed the contents of the videotape. 

Appellant asserts that the commission based its decision upon 

this letter and that his due process rights were violated by this 

reliance because he had no opportunity to cross-examine Dr. 

Khokhar on the opinion expressed in his letter. We disagree. 

Contrary to appellant's assertion, the record does not establish 

that the commission relied on Dr. Khokhar's letter of September 

22, 1995 in its decision. Instead, the only mention of Dr. 

Khokhar's opinion in the commission's decision refers to his 

letter of October 10, 1994 in which he referred to the evaluation 

performed by Mr. Kirby and Ms. Knowles. Thus, even if the 

commission did erroneously deny appellant his right to confront 

Dr. Khokhar, appellant has failed to demonstrate any prejudice. 
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 Moreover, even if the commission had relied on Dr. Khokhar's 

unchallenged opinion, appellant's due process rights were not 

violated. "'Generally speaking, the Confrontation Clause 

guarantees an opportunity for effective cross-examination, not 

cross-examination that is effective . . . to whatever extent, the 

[claimant] might wish.'" Nichols v. Commonwealth, 6 Va. App. 

426, 429, 369 S.E.2d 218, 220 (1988) (quoting Delaware v. 

Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L.Ed.2d 15 

(1985)). In this case, appellant was aware that the deputy 

commissioner's evidentiary ruling was subject to de novo review 

by the commission and that appellees had proffered Dr. Khokhar's 

analysis of the videotape. Appellant had the opportunity to 

depose Dr. Khokhar regarding his letter before the deputy 

commissioner closed the record. Thus, we cannot say that 

appellant was unconstitutionally deprived of an opportunity to 

cross-examine Dr. Khokhar. 

 III. 

ISSUES RELATED TO THE MEDICAL EVIDENCE 

 Appellant makes several arguments regarding the medical 

evidence supporting the commission's decision. First, he argues 

that Dr. Adelaar's medical opinion was unrebutted because Dr. 

Khokhar never expressed an opinion regarding appellant's ability 

to use his right arm and leg. Second, appellant contends that 

the commission failed to accord appropriate weight to Dr. 

Adelaar's opinion. Third, appellant asserts that the commission 
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erroneously reversed the credibility determinations of the deputy 

commissioner. Finally, appellant argues that the evidence was 

insufficient to support the commission's decision that claimant 

was not entitled to permanent total disability benefits. 

 A. 

 We hold that Dr. Adelaar's opinion that appellant was unable 

to use his right arm and leg in any gainful employment was 

rebutted by the opinion in Dr. Khokhar's letter of October 10, 

1994. Appellant is correct that "[t]he commission may not 

arbitrarily disregard uncontradicted evidence of unimpeached 

witnesses, which is not inherently incredible and not 

inconsistent with other facts in the record." Hercules, Inc. v. 

Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991). 

However, it is apparent that Dr. Khokhar intended his letter of 

October 10, 1994 as an expression of his medical opinion that 

appellant could use his right arm and leg in either sedentary or 

light work. In his letter of September 21, 1994, Dr. Khokhar 

stated that he would "comment" on appellant's ability to work 

after reviewing the functional capacity evaluation performed by 

Mr. Kirby and Ms. Knowles. Then, after the evaluation was 

completed, Dr. Khokhar stated in his letter of October 10, 1994 

that "[t]he work capacity evaluation has shown [appellant's] 

capability of utilizing [his] right upper and lower extremity for 

gainful employment . . . ." Based on the context of his two 

letters, we conclude that Dr. Khokhar intended to adopt the 
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conclusions of Mr. Kirby's and Ms. Knowles' evaluation as his 

opinion in his letter of October 10, 1994. This opinion rebutted 

Dr. Adelaar's opinion and entitled the commission to resolve this 

conflict in the evidence. 

 Moreover, Dr. Adelaar's opinion was also rebutted by the 

opinion of Mr. Kirby. The commission may consider non-medical 

evidence in determining the status of a claimant's disability, 

and a witness who is not a medical doctor may give admissible 

medical testimony. See Cafaro Constr. Co. v. Strother, 15 Va. 

App. 656, 660 n.2, 426 S.E.2d 489, 492 n.2 (1993); Seneca Falls 

Greenhouse & Nursery v. Layton, 9 Va. App. 482, 486-87, 389 

S.E.2d 184, 187 (1990). Mr. Kirby opined during his testimony 

and in his report that appellant could use his right arm and leg 

in either sedentary or light employment. This opinion rebutted 

Dr. Adelaar's opinion regarding the extent to which appellant had 

lost the use of his right arm and leg and likewise created a 

conflict in the evidence. 

 B. 

 We also hold that the commission did not err when it 

declined to adopt the opinion of Dr. Adelaar, who was appellant's 

attending physician. Generally, "great weight should be given to 

the evidence of an attending physician." C.D.S. Constr. Servs. 

v. Petrock, 218 Va. 1064, 1071, 243 S.E.2d 236, 241 (1978). 

However, "[an attending physician's] opinion is not binding on 

the commission. The probative weight to be accorded such 
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evidence is for the commission to decide; 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.'" Id. (quoting Williams v. Fuqua, 199 Va. 709, 714, 101 

S.E.2d 562, 567 (1958)). In this case, the commission weighed 

the conflicting opinions of Dr. Adelaar, Dr. Khokhar, and Mr. 

Kirby and was within its discretion when it decided that the 

opinions of Dr. Khokhar and Mr. Kirby were more persuasive. 

 C. 

 We hold that the commission did not err when it reversed 

the credibility determination of the deputy commissioner 

regarding the medical evidence. Upon review of a deputy 

commissioner's decision, the commission may not arbitrarily 

disregard the deputy commissioner's specific credibility 

determinations that are based upon a recorded observation of the 

demeanor or appearance of a witness. See Goodyear Tire & Rubber 

Co. v. Pierce, 5 Va. App. 374, 382, 363 S.E.2d 433, 437 (1987). 

In such instances, the commission is required to articulate the 

basis for its conclusion. Id. However, if the deputy 

commissioner does not include a specific, recorded observation 

regarding the behavior, demeanor or appearance of a witness in 

his or her opinion, the commission has no duty to explain its 

reasons for making credibility determinations that differ from 

those made by the deputy commissioner. Bullion Hollow 

Enterprises v. Lane, 14 Va. App. 725, 729, 418 S.E.2d 904, 907 
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(1992). 

 The commission's reversal of the deputy commissioner's 

determination that Dr. Adelaar's opinion was more credible than 

Dr. Khokhar's was not erroneous. The deputy commissioner did not 

base his opinion on any observation of either doctor's demeanor 

or behavior. Indeed, neither doctor testified in person before 

the deputy commissioner. Thus, the commission was under no duty 

to explain its decision to reverse the credibility finding of the 

deputy commissioner. Nevertheless, the commission stated that it 

found "the report of Dr. Khokhar and the functional capacities 

evaluation team to be more reliable and probative [because] it 

was based on objective and empirical testing . . . while Drs. 

Adelaar and Sinsabaugh relied essentially on what the claimant 

represented he could do." This conclusion is supported by 

credible evidence in the record. 

 D. 

 We hold that the evidence was sufficient to support the 

commission's decision. "It is fundamental that a finding of fact 

made by the commission is conclusive and binding upon this Court 

on review. A question raised by conflicting medical opinion is a 

question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 

347 S.E.2d 532, 533 (1986). "The fact that there is contrary 

evidence in the record is of no consequence if there is credible 

evidence to support the commission's finding." Wagner Enters., 

Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 
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Relying on the opinions of "Dr. Khokhar and the functional 

capacities evaluators," the commission concluded that appellant 

"failed to prove that he is unable to use his right hand and 

right leg to any substantial degree in gainful employment." We 

cannot say that this conclusion is not supported by credible 

evidence in the record. 

 For the foregoing reasons, we affirm the commission's 

decision. 

 Affirmed.