International Paper Co. v. McElroy

789 P.2d 269, 101 Or. App. 61, 1990 Ore. App. LEXIS 306

• Court: Court of Appeals of Oregon
• Decided: March 28, 1990
• Docket: 87-13564; CA A60519
• Status: Published

Opinions

ROSSMAN, J.

Employer petitions for review in this workers’ compensation case. Claimant compensably injured his pelvis in April, 1986. He returned to work, and the claim was closed in September, 1986. Employer laid him off in November; early in 1987, he went to work part-time as a janitor at a different employment. He began to complain of increased pain in March, 1987, and filed an aggravation claim the next month. Employer denied the claim.

After a hearing, the referee affirmed the denial:

“The only support for claimant’s claim for aggravation is the claimant’s subjective complaint of increased pain which is not really verified by any of the medical examiners he has seen, including Dr. McLean. I conclude that the claimant believes he could do the work at International Paper and, in fact, wants to be employed there. I did not find claimant to be a credible witness.”

The Board reversed, saying:

“The employer argues that claimant has failed to sustain his burden of proof because the medical opinions are based on claimant’s subjective reports and the Referee found claimant not credible. We would agree if we were to accept the Referee’s credibility finding; however, we do not.

“The Referee stated without explanation that claimant was not a credible witness. There is no basis for inferring that the Referee’s credibility finding is based on demeanor. We find nothing in the record which supports a finding that claimant was not credible. We have no obligation to defer to a credibility finding which is not based on demeanor because we are in as good a position as the Referee to decide credibility based on the record. Accordingly, we find that claimant was credible. We rely on his testimony that his condition has worsened to the point that he cannot do his regular work.”

Employer argues that the Board’s conclusion that claimant suffered an aggravation is not supported by substantial evidence, because claimant presented no objective evidence and his subjective claims were not credible. It contends that the referee’s finding on the issue of credibility should be given great weight, because the referee’s opinion implies that the finding is based on claimant’s demeanor.

A finding about credibility may rest on demeanor or on objective evaluation of the substance of a witness’ testimony. When the finding is made on the basis of demeanor, deference is given to the referee’s determination but, when the determination is not based on demeanor, the referee has no greater advantage than the reviewing body in determining credibility. Coastal Farm Supply v. Hultberg, 84 Or App 282, 285, 734 P2d 1 (1987). Here, the referee gave no explanation for his credibility finding.¹ Thus, there was no determination to which the Board, on its de novo review, could defer. It was free to make its own determination. The record supports the Board’s holding.²

Affirmed.

1 We note that the Board’s reasoning on credibility does not affect its conclusion that the expert medical evidence supported claimant’s aggravation claim. The Board concluded:

“The medical experts agree that claimant’s compensable condition has not objectively worsened. However, they also agree that his subjective complaints have worsened so that he can no longer do his regular work. A subjective worsening which renders a claimant less able to work is sufficient to prove an aggravation claim.” (Emphasis supplied.)

2 The dissent suggests that, because the Board found “nothing in the substance of claimant’s testimony to deprive it of credibility,” 101 Or App at 66 (emphasis supplied), the referee necessarily based his finding on demeanor. The referee may have based his decision on substantive inconsistencies, demeanor or a combination of those factors.