Buchanan Co. Pub. Serv. Authority v. Cecil Robbins ( 1996 )

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
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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
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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
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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
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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
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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
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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.
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