Patrick Frank Bryan v. Highway Carriers ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
PATRICK FRANK BRYAN
MEMORANDUM OPINION*
v. Record No. 1800-98-2 PER CURIAM
OCTOBER 19, 1999
HIGHWAY CARRIERS, INC. AND
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Patrick F. Bryan, pro se, on brief).
No brief for appellees.
Patrick Frank Bryan (claimant) contends that the Workers’
Compensation Commission (commission) erred in (1) denying his
request for a rehearing based on after-discovered evidence; (2)
failing to strike the defenses of Highway Carriers, Inc. and its
insurer (hereinafter referred to as "employer") on the ground
that claimant did not receive employer's answers to his
interrogatories and employer failed to notify claimant of its
intent to rely on the defense that he had deviated from his
route at the time of his accident; (3) finding he failed to
prove he sustained an injury by accident arising out of and in
the course of his employment on September 22, 1997; and (4)
finding that employer proved that he committed willful
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
misconduct pursuant to Code § 65.2-306. Upon reviewing the
record and the briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
commission’s decision. See Rule 5A:27.
I.
As the party seeking to reopen the record on the basis of
after-discovered evidence, claimant bore the burden of proving
that "(1) the evidence was obtained after the hearing; (2) it
could not have been obtained prior to the hearing through the
exercise of reasonable diligence; (3) it is not merely
cumulative, corroborative or collateral; and (4) it is material
and should produce an opposite result before the commission."
Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452
S.E.2d 881, 883 (1995).
In denying claimant's request on review for the opportunity
to present additional witness testimony and a Department of
Motor Vehicles (DMV) report to rebut evidence presented at the
hearing, the full commission found as follows:
The claimant did not present the DMV report
to the Commission before the record closed.
We do not find that the claimant who was
represented by counsel would be unduly
surprised that his driving record may be
relevant to a claim originating from a motor
vehicle accident. Moreover, this evidence
existed and was readily obtainable prior to
the Hearing. The failure to obtain
testimony and records that were available
and known does not satisfy the diligence
requirement. . . . With regard to
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witnesses, the legally-represented claimant
was aware that he could present other
witnesses. He replied in his answers to
interrogatories that no other witnesses
would testify. By letter of December 12,
1997, the Deputy Commissioner requested that
the claimant submit a synopsis of expected
witness testimony, if any. The proposed new
evidence fails to qualify as essential
after-discovered evidence. We do not find
that the DMV report and the witness
testimony are of such crucial character and
that this evidence could not have been
obtained prior to the record closing through
the exercise of reasonable diligence.
Credible evidence supports the commission's findings.
Based upon these findings, the commission could conclude that
claimant had ample opportunity to obtain the DMV report and the
witnesses' testimony before the hearing, but failed to do so.
Because claimant did not satisfy the second prong of the
Williams test, the commission did not err in denying his request
for a rehearing to introduce after-discovered evidence.
II.
We find, as did the commission, that claimant waived any
objection regarding employer's answers to interrogatories and
notification of the deviation defense, by failing to object at
the hearing when the deputy commissioner recited employer's
defenses, including the deviation defense. As the commission
noted, at the hearing, claimant, who was represented by counsel,
"did not claim to be surprised and did not move to strike the
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defense. Also, they did not raise any objections at the Hearing
regarding the interrogatories or the answers."
Furthermore, claimant initiated discussion regarding his
route of travel during his direct testimony and was questioned
regarding his route in his deposition prior to the hearing.
Under these circumstances, the commission did not err in finding
that "claimant had sufficient opportunity to address and prepare
for the deviation defense."
III.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). A
finding by the commission that an injury did not arise out of
and in the course of employment is a mixed finding of law and
fact and is properly reviewable on appeal. See City of Richmond
v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261 (1985).
"In order to establish entitlement to compensation
benefits, the claimant must prove, by a preponderance of the
evidence, an injury by accident which arose out of and in the
course of his employment." Classic Floors, Inc. v. Guy, 9 Va.
App. 90, 95, 383 S.E.2d 761, 764 (1989). Unless we can say as a
matter of law that claimant met his burden of proof, the
commission's findings are binding and conclusive upon us. See
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Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
"'[A]n accident occurs in the "course of employment" when
it takes place within the period of employment, at a place where
the employee may be reasonably expected to be, and while he is
reasonably fulfilling the duties of his employment or is doing
something which is reasonably incidental thereto.'" Thore v.
Chesterfield County Bd. of Supervisors, 10 Va. App. 327, 331,
391 S.E.2d 882, 885 (1990) (citations omitted).
The issue of whether employer had instructed claimant to
drive his truck on a specific route and whether, at the time of
his accident, claimant had substantially deviated from that
route, thereby removing him from the course of his employment,
depended solely upon the credibility of the witnesses. The
commission summarized the conflicting testimony and its findings
as follows:
The claimant testified that the employer
told him to take U.S. Route 17. This
testimony contradicts [Randall L.]
Huntsinger's testimony that the claimant was
told to travel I-95 and to avoid U.S. Route
17. Faced with these inconsistencies, the
Deputy Commissioner determined that
Huntsinger's testimony was the more credible
and that his "demeanor and the presentation
of his testimony" was "far more convincing"
than the claimant's. . . .
* * * * * * *
. . . Also, even if we accept
[claimant's] argument that he drove the
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alternative route to avoid weight scales, as
directed by his employer, this testimony is
inconsistent with his admission that his
load was within weight limitations. If the
claimant's load was not overweight, there
was no reason for him to detour from I-95 in
order to avoid the scales. Also, the detour
was significant. It seems inconsistent for
such a detour to be in the employer's
interest when overhead and costs are
considered in conjunction with the
claimant's testimony that the load was not
overweight.
* * * * * * *
The claimant testified at the Hearing
that he was at the accident location as a
result of the route he took pursuant to the
employer's instructions. This represents a
factual conflict that was decided by the
Deputy Commissioner adversely to the
claimant. The claimant has not alleged that
he was on the entry ramp for personal
comfort. He has not even testified to a
minor deviation. On the contrary, the
claimant's substantial deviation from the
employer-directed route led to the location
of the accident. . . . At the time of the
accident, the claimant had not yet returned
to the roadway which the employer required
him to travel. Instead, he was traveling a
route which the Deputy Commissioner found
that the employer had expressly forbidden.
The full commission relied upon the deputy commissioner's
credibility determination in reaching its decision. It is well
settled that credibility determinations are within the fact
finder's exclusive purview. See Goodyear Tire & Rubber Co. v.
Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). Based
upon this record, the commission was entitled to accept
Huntsinger's testimony and to conclude that claimant's testimony
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was not credible. Accordingly, we cannot find as a matter of
law that claimant's evidence proved that his accident arose out
of and in the course of his employment. See Grimes v.
Janney-Marshall Co., 183 Va. 317, 32 S.E.2d 76 (1944)
(claimant's deviation, without permission, from
employer-mandated route rendered injuries sustained in truck
accident not compensable).
IV.
The commission denied compensation to claimant for the
reasons set forth in part III. of this opinion. The commission
did not deny compensation to claimant based upon a willful
misconduct defense. Accordingly, we need not address this issue
on appeal.
For the reasons stated, we affirm the commission's
decision.
Affirmed.
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