Kane Plumbing, Inc. v. Small , 7 Va. App. 132 ( 1988 )

Moon, J.,

concurring.

I agree that there was credible evidence to support the award. I comment beyond what is said in the majority opinion because I believe the commission misconstrued the holding in Board of Supervisors v. Martin, 3 Va. App. 139, 348 S.E.2d 540 (1986). The commission cites the statement in Martin that it should not rely upon the history taken by the doctor from claimant to determine how the accident happened. Martin had testified at the hearing to a set of facts that rendered his injury noncompensable. In order to find the injury compensable, the commission considered a more favorable statement Martin had previously made to his doctor.

In Martin, we stated that a “claimant cannot rely upon [his history as given to the doctor] ... to impeach his stipulation or unequivocal testimony at trial.” Id. at 144, 348 S.E.2d at 542 (citing Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922)). However, we added that, where appropriate, the history may be used to impeach or corroborate claimant’s testimony.

Thus, if a claimant has made a prior inconsistent statement in his account of his injury to his physician, that statement may be used to impeach his testimony. Moreover, if the statement is such that it constitutes a party admission, it not only is admissible for impeachment, but is substantive evidence against the claimant. C. Friend, The Law of Evidence in Virginia § 253 (2d ed. 1983). If the commission should believe that the admission is a true account of how the injury occurred, then, obviously, the admission may be used as evidence of how the injury occurred. There is a difference between the possible uses of a party admission and a self-serving declaration, as found in Martin.

Notwithstanding what I consider an erroneous interpretation of the limits placed on the commission’s use of the doctor’s history in Martin, I agree with the majority that the commission obviously considered the contradictory material in the medical history. It found that claimant’s testimony before the deputy commissioner, when considered with all of the evidence, was credible, in spite of contradictions in the medical history.

Therefore, I concur with the majority in affirming the award.