Buchanan Co. Pub. Serv. Authority v. Cecil Robbins

• Court: Court of Appeals of Virginia
• Decided: October 15, 1996
• Docket: 2809953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Elder Argued at Salem, Virginia

BUCHANAN COUNTY PUBLIC SERVICE AUTHORITY and CINCINNATI INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 2809-95-3 JUDGE SAM W. COLEMAN III OCTOBER 15, 1996 CECIL D. ROBBINS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Jim H. Guynn, Jr. (Guynn & Britt, P.C., on briefs), for appellants.

Gerald F. Sharp (Browning, Lamie & Sharp, P.C., on brief), for appellee.

In this workers' compensation case, Buchanan County Public

Service Authority (Buchanan County) contends that the commission

erred in awarding Cecil D. Robbins (claimant) temporary total

disability benefits. Specifically, Buchanan County argues that

the commission erred in rejecting the deputy commissioner's

witness credibility findings and in concluding that credible

evidence supported the claimant's award. We find no error and

affirm the commission's award.

The claimant worked as a maintenance superintendent at

Buchanan County's water and sewer systems. On March 13, 1995,

the claimant and two other employees, Bradley Vandyke and Jeff

Stiltner, were attempting to pry open the door to a pump station

using a chisel, screw driver, and slate bar when claimant alleged * Pursuant to Code § 17-116.010 this opinion is not designated for publication. that he fell backwards, struck his head, and injured his neck.

At the hearing before the deputy commissioner, the claimant

testified that "we started prying stuff on the door, trying to

jerk and pull on the door at the same time and that's when I

jerked back on -- on one occasion I jerked back . . . and I kind

of felt like I . . . pulled something in my neck or shoulder but

I . . . shrugged it off a little bit." He further testified that

the screwdriver "jerked" and he "fell backward and hit [his]

head." The two employees that were working with the claimant,

Vandyke and Stiltner, testified and denied having seen the

claimant fall and denied any knowledge of an accident. Dr. Jim C. Brasfield, who had previously treated the

claimant for cervical spine problems resulting from a 1989 work-

related injury, examined the claimant on March 16, 1995. Dr.

Brasfield noted that the results of the exam did not appear to be

consistent with several of the claimant's complaints. Dr.

Brasfield was skeptical of the claimant's complaint that he had

received a neck injury and suggested that other motives might be

in play. Dr. Brasfield reported that the claimant had previously

requested of him that he "disable" the claimant. Accordingly,

Dr. Brasfield arranged for the claimant to have a cervical and

lumbar myelogram in order to more accurately evaluate his

condition.

The myelogram revealed a "significant change in the 3rd

cervical disc." Therefore, Dr. Brasfield confirmed that by

- 2 - history the claimant had a neck injury, and as to its cause, he

reported: [c]omparing today's myelogram/CT with that of 9-30-92, the third disk does look to be worse and therefore I think is symptomatic. Given the fact that his neck pain seemed to worsen rather acutely with his injury of 3-13-95, then I think that the 3-13-95 injury has to be considered a new injury with the resultant cervical 3 disk rupture being related to that. To summarize, the patient has a cervical 3 disk rupture, which I think is related to his new injury of 3-13-95.

All records prepared by Dr. Brasfield after the myelogram

reflected his diagnosis that the ruptured disk was related to the

claimant's workplace injury.

The deputy commissioner found that the claimant failed to

prove by a preponderance of the evidence that he suffered an

injury by accident arising out of and during the course of his

employment. Specifically, the deputy commissioner found,

"[a]fter personally observing the witnesses and their demeanor,"

that Stiltner and Vandyke were "credible witnesses," and that the

claimant's testimony was not "of such weight to override the

unequivocal testimony of [Stiltner] and [Vandyke]." Furthermore,

the deputy commissioner noted that the emergency room physician

inexplicably "did not record any circumstances concerning the

March 13, 1995 incident but did make reference to claimant's

previous injury and surgeries," and that the claimant's

statements to the insurance carrier were inconsistent with his

testimony in that in his interview with the carrier he could only

- 3 - surmise that when he fell backward he had actually struck the

ground.

On review, the full commission reversed the deputy

commissioner and awarded the claimant temporary total disability

benefits. The commission held that "[a]lthough the Deputy

Commissioner found the employer's witnesses credible, their

testimony that they were unaware of the accident at the time does

not in itself disprove the employee's claim." Thus, the

commission found that the deputy commissioner's denial of

benefits and credibility determinations were based on weighing

the facts and testimony in the record. According to the

commission, the claimant's description of the March 13th accident

was generally consistent, and that "the minor inconsistency

relating to whether the claimant found dirt in his hair or bumped

his head [was] not fatal to the claim." More important, however,

the commission found that "Dr. Brasfield stated unequivocally

that the C3 disk herniation was not present before the accident

and was causally linked to the accident." [A] specific, recorded observation of a key witness' demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard. When the commission does not follow such a finding, the record should indicate that the commission did not arbitrarily ignore the finding.

Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 382, 363

S.E.2d 433, 437 (1987), appeal after remand, 9 Va. App. 120, 127, 384 S.E.2d 333, 335 (1989). Here, the deputy commissioner found

- 4 - that Stiltner and Vandyke were credible witnesses. Buchanan

County argues that this finding by the deputy commissioner was

necessarily a finding that the claimant lacked credibility based

upon his demeanor at the hearing and, therefore, was binding upon

the commission under Pierce. On this record, the commission

could make its own credibility determinations by deciding which

witnesses' accounts seemed more accurate, which accounts were

believable, whether independent evidence corroborated various

accounts, whether witnesses had motives or biases for testifying

as they did, whether witnesses had an opportunity to observe, and

such other factors that may affect credibility. Pierce distinguishes between credibility determinations

based upon specific observations of appearance and demeanor and

those based upon the substance of the testimony and other

evidence. When the deputy commissioner's finding of credibility is based, in whole or in part, upon the [witness'] appearance and demeanor at the hearing, the commission may have difficulty reversing that finding without recalling the witness. On the other hand, if the deputy commissioner's determination of credibility is based on the substance of the testimony and not upon the witness' demeanor and appearance, such a finding is as determinable by the full commission as by the deputy.

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

situation, the commission has no duty to explain its decision

favoring the testimony of one witness over another "absent a

specific, recorded observation regarding the behavior, demeanor

- 5 - or appearance of [the witnesses]." Bullion Hollow Enters. v.

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

Kroger Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 881

(1992).

Upon review of the deputy commissioner's decision, it

contained no "specific recorded observation" of the demeanor of

the witnesses as a basis for determining credibility that would

have been available and observable only by the hearing officer. See Lane, 14 Va. App. at 729, 418 S.E.2d at 907. "[A] deputy

commissioner cannot render his findings of fact unreviewable

simply by asserting that his conclusion as to a witness'

credibility is based on the witness' appearance and demeanor."

Williams v. Auto Brokers, 6 Va. App. 570, 574, 370 S.E.2d 321,

323 (1988). The deputy's credibility determination here was

based primarily on the substantive testimony of the witnesses as

well as other evidence in the record, such as the claimant's

medical records. Although the deputy commissioner passingly

mentioned the witnesses' demeanor, he did not describe or explain

anything about the appearance or demeanor of the claimant that

would indicate his testimony was incredible or that Vandyke and

Stiltner were credible. Therefore, the commission did not err in

finding that the deputy commissioner's credibility determinations

were not binding and did not err in making its own credibility

determinations, as the fact finder is required to do.

In reviewing whether the evidence is sufficient to prove an

- 6 - accident or to prove causation, we do not reweigh the evidence or

redetermine the credibility of the witnesses. Wagner Enters.,

Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

We do not redetermine the preponderance of the evidence or

substitute our judgment for that of the commission. Id. We

review the evidence in the light most favorable to the party

prevailing before the commission. R. G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "The

burden [of proof] is upon a claimant to prove by a preponderance

of the evidence that he sustained a compensable injury" which

requires proof of an accident and an injury caused by that

accident. Virginia Dep't of Transp. v. Mosebrook, 13 Va. App.

536, 537, 413 S.E.2d 350, 351 (1992); see Morris v. Morris, 238

Va. 578, 589, 385 S.E.2d 858, 865 (1989).

The record clearly reflects a conflict in the testimony as

to whether the claimant fell and hit his head on the ground.

However, the commission placed weight on the fact that the

claimant consistently reported to the employer, the hospital, the

insurance carrier, and Dr. Brasfield that he first felt pain when

trying to pry the door open before he claimed to have fallen.

The deputy commissioner's finding that the emergency room records

did not reflect that the injury was work-related is not supported

by the record.

More importantly, the commission notes that Dr. Brasfield's

first report opined that the claimant may have been embellishing

- 7 - his symptoms and that "other motives" might have been "in play"

since the claimant had asked Dr. Brasfield to "disable" him

before this injury. However, after conducting a myelogram on

March 23, 1995, Dr. Brasfield changed his diagnosis and stated

affirmatively that the rupture of the claimant's C3 disk was not

present before March 13, 1995 and, in his opinion, was causally

related to his injury on March 13, 1995.

Based upon Dr. Brasfield's diagnosis of the claimant's

injury and his opinion as to the cause thereof, combined with the

general consistency of the claimant's account of the accident,

sufficient credible evidence exists in the record to support the

commission's award. Accordingly, the decision of the commission

is affirmed.

Affirmed.

- 8 -