Arlington Renaiss. Hotel v. Maria E. Ramirez

• Court: Court of Appeals of Virginia
• Decided: October 24, 1995
• Docket: 0176954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Hodges Argued at Alexandria, Virginia

ARLINGTON RENAISSANCE HOTEL and HARTFORD UNDERWRITERS INSURANCE COMPANY

v. Record No. 0176-95-4 MEMORANDUM OPINION BY * CHIEF JUDGE NORMAN K. MOON MARIA ESTHER RAMIREZ OCTOBER 24, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Benjamin J. Trichilo (Trichilo Bancroft, McGavin, Horvath & Judkins, P.C., on briefs), for appellants.

(Arturo Hernandez, on brief), for appellee.

Arlington Renaissance Hotel and Hartford Underwriters

Insurance Company appeal a Workers' Compensation Commission's

award to Maria Esther Ramirez on account of an injury she

sustained while at work. Appellants maintain that the commission

arbitrarily disregarded the deputy commissioner's determination

that Ms. Ramirez was untruthful concerning her injury and that as

a matter of law Ramirez did not describe a compensable injury.

Ramirez, a housekeeper, testified that she was squatting for

seven to eight minutes cleaning a bathroom and when she stood up

her left leg was numb. She stated that as she began to walk she

twisted her left ankle and fell to the floor. The deputy

commissioner found her not credible because she was confused

about the date of the injury and because her testimony was

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. different than earlier descriptions of the injury. The primary

difference was her failure to mention numbness to her employer or

doctors' confusion over the date of injury. The commission

reversed the deputy's finding on credibility, and found that

working in the squatting position caused her leg to go numb,

which caused her to fall when she walked. On that basis, the

commission awarded benefits.

The appellants argue that the commission arbitrarily

disregarded the deputy's findings on credibility, and that

reversal is required by Goodyear Tire & Rubber Co. v. Pierce, 5

Va. App. 374, 363 S.E.2d 433 (1987). In that case, we held that

where the deputy's findings are based on a specific, recorded

observation of a witness' demeanor or appearance, the commission

cannot arbitrarily disregard such findings. Pierce, 5 Va. App.

at 382-83, 363 S.E.2d at 437-38. However, the commission may

reverse a deputy's findings, including a credibility

determination based on appearance and demeanor, if it articulates

a basis for its different conclusion that is supported by

credible evidence in the record. Williams v. Auto Brokers, 6 Va.

App. 570, 573, 370 S.E.2d 321, 323 (1988). If the deputy's

credibility determination is based on the substance of the

testimony or other evidence in the record, the credibility issue

is "as determinable by the full commission as by the deputy."

Pierce, 5 Va. App. at 383, 363 S.E.2d at 438. In such cases, the

commission has no duty to explain its reasons for believing one

witness over another, although its conclusion must of course be - 2 - supported by credible evidence. Bullion Hollow Enterprises, Inc.

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

Here, the deputy's determination on credibility was based

primarily on testimony and other evidence in the record, with

only a passing reference to "the demeanor of the witnesses." The

commission reviewed the evidence in the record and decided that

the claimant was credible, rejecting the deputy's finding to the

contrary because it was influenced by the claimant's confusion

over the date of injury. While the commission did not

specifically address the deputy's statement concerning demeanor,

it was not required to do so because the deputy made no

"specific, recorded" observation about demeanor. Also, a deputy

commissioner cannot render his findings of fact unreviewable

simply by asserting that his conclusion on credibility was based

on appearance and demeanor. Williams v. Auto Brokers, 6 Va. App.

at 574, 370 S.E.2d at 323.

Here, the commission based its determination that claimant's

testimony was credible upon a finding that her "description of

the accident is consistent throughout all reports." Because the

record does not support a finding that her testimony was

consistent throughout all reports in the material facts upon

which claimant relies to support her claim's compensability, we

reverse.

After claimant had discussed her accident with her employer

and her physician, never mentioning to anyone her leg being numb

from squatting, her attorney more than a month later, filed the - 3 - initial Claim for Benefits stating that claimant's leg was numb

from squatting. Claimant repeated this accident description in

her testimony, and the commission relied upon it as proof of the

cause of her fall.

We quote from Commissioner Joyner's dissent what the record

shows regarding the reports of claimant's fall. The employer offered the testimony of Sandra Jones, a personnel officer. Jones testified that July 11, 1993, was a Sunday and that the claimant did not work that day. Jones further testified that when she reported the accident on July 14, 1993: . . . She told me, she really didn't know what happened, just that she had hurt her foot. She didn't know how it happened or exactly when it happened. Just that she had hurt her foot and she was going to the hospital. (Tr. 24)

However, Jones acknowledged that the claimant did work Monday, July 12, 1993. The Employer's First Report of Accident completed by Jones was then made part of the record (Tr. 28). That report reflects an accident occurring on Monday, July 12, 1993, which was reported on Tuesday, July 13, 1993. The report apparently was completed on July 14, 1993, and was based on the information provided by the claimant. Therefore, at this point, one or possibly two accident dates have been alleged, with a history that does not include any complaints of squatting or numbness. Evidence has been offered as to probable dates between July 10 and July 14. The claimant reported to the employer, as well as to Dr. Evans, that she was simply walking out of the bathroom or a bedroom when she twisted her foot. She offered no rebuttal evidence as to the accident date nor any explanation of the various accident dates noted above. Neither did the claimant offer any explanation as to the incomplete report to the employer and to Dr. Evans. The first indication of leg numbness appears in the initial Claim for Benefits filed by claimant's counsel on August 23, 1993.

Without the testimony of her leg numbness from squatting, there

would be no credible evidence to support an award in this case.

- 4 - The proof would be of no more than an unexplained fall which is

not compensable. Memorial Hosp. v. Hairston, 2 Va. App. 677, 347

S.E.2d 527 (1986). An unexplained fall is what claimant reported

at every reported stage until her attorney filed the initial

Claim for Benefits over a month after the accident.

Thus, because the commission's conclusion concerning

claimant's credibility is not supported by the record, we reverse

the award and remand the claim for reconsideration of whether

claimant's testimony supporting the award was credible. Reversed and remanded.

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