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Brafford v. Brafford''s Construction Co.3/18/1997
WYNN, Judge.
In 1991, the Industrial Commission approved as compensable plaintiff Jerry M. Brafford's claim for a back injury of 18 November 1990, arising out of and in the course of his employment with defendant Brafford's Construction Company. Several months thereafter, defendant-carrier Aetna Casualty and Surety Co., requested that the compensation payments be stopped. Plaintiff responded by requesting a hearing; subsequently, he amended that request to indicate that he also suffered a brain injury in the 18 November 1990 accident.
At the hearing before Deputy Commissioner Richard B. Ford, the parties stipulated to approximately thirty pages of medical records, and defendants introduced four surveillance videotapes. It is relevant only for purposes of an issue raised in this appeal to indicate that Deputy Commissioner Ford has total sight impairment. Among the witnesses who testified were plaintiff; Dr. Erwin Batchelor, a neuropsychologist; and James C. Boatner, a private investigator .
In April 1995, Deputy Commissioner Ford entered an Opinion and Award finding in part that:
1. On November 18, 1990, plaintiff sustained an injury by accident arising out of and in the course of the employment with defendant-employer when he fell approximately 14 or 20 feet to the ground while repairing a roof injuring his back, a crushed vertebrae at L-1, and head causing unconsciousness.
2. As the result of said fall, the plaintiff's head and brain were injured by closed head injury , or brain trauma principally to the left hemisphere, superimposed on previous brain injuries occurring in 1970 and 1978 causing injury at the time and exacerbating the previous injuries of 1970 and 1978.
3. As a result of the said brain injury of November 18, 1990, the plaintiff has had diminished right arm swing and use of his right hand, problem with use of language, difficulty shifting between information and new learning, non-verbal problem solving, depression and anxiety.
4. Due to his brain injury which the plaintiff sustained on November 18, 1990, he is unable to return to his former level of activity existing prior to said date of November 18, 1990 when he was able to perform his work duties although he may experience some future improvement in his activity level.
5. Although the plaintiff has been observed on March 2, 1992 to perform the functions of washing a truck at a car wash and on other occasions to drive and operate a motor vehicle, his brain injuries remain such that, at this time, he is unable to be gainfully employed and rejoin the work force as he was functioning prior to November 18, 1990.
Deputy Commissioner Ford concluded that defendants should pay total disability compensation benefits to plaintiff until such time as he returned to work or became gainfully employed. Defendants' follow-up appeal resulted in Conclusions by the Full Commission ("Commission") that defendants had not shown good grounds to (1) reconsider the evidence, (2) receive further evidence, (3) rehear the parties, or (4) amend the Opinion and Award. Defendants now appeal to this Court for relief.
The issues on appeal are whether the Commission erred in: (I) finding that the accident on 18 November 1990 exacerbated any pre-existing condition from which plaintiff suffered; (II) relying upon the testimony of Dr. Batchelor; (III) failing to reconsider defendants' surveillance videotapes; and (IV) finding that plaintiff was unable to return to his former level of activity. We find no error in the Commission's order and therefore affirm. I.
Defendants first object to the Commission's finding that the accident on 18
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