COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and McClanahan
Argued at Salem, Virginia
ESTATE OF LEON ABBOTT KISER AND
ELIZABETH KISER
OPINION BY
v. Record No. 3377-02-3 JUDGE ELIZABETH A. McCLANAHAN
AUGUST 5, 2003
PULASKI FURNITURE COMPANY AND
RELIANCE INSURANCE COMPANY IN
LIQUIDATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James B. Feinman (James B. Feinman &
Associates, on briefs), for appellants.
S. Vernon Priddy III (Sands, Anderson
Marks & Miller, on brief), for appellees.
The Estate of Leon Abbott Kiser and his widow, Elizabeth
Kiser, appeal a decision of the Virginia Workers' Compensation
Commission denying their claim for benefits. The claim alleged
that Leon Kiser suffered an injury by accident and that
complications from the accident resulted in his death.
Claimants contend that the commission erred (1) by allowing a
hearing on the claim to be "reopened" to accept testimony from a
witness discovered post-hearing, without following the
requirements for admission of after-discovered evidence as set
forth in Williams v. People's Life Ins. Co., 19 Va. App. 530,
452 S.E.2d 881 (1995), and (2) in finding that the testimony of
the new witness was not reasonably available before the initial
hearing. For the reasons that follow, we affirm the decision of
the commission.
I. Background
Leon Kiser had worked for Pulaski Furniture Company for
eight years when, on March 26, 1999, he allegedly fell backward
over a flat, or pallet, located by his workstation and fractured
his hip. While convalescing from the hip injury, Kiser
developed pneumonia, resulting in his death. Kiser's estate and
widow sought death benefits, alleging that Kiser's death was a
compensable consequence of the hip injury.
A hearing on the claim was held on June 22, 2000. At the
close of the hearing, the deputy commissioner held open the
record for thirty to sixty days for additional medical evidence.
On July 7, 2000, employer filed a motion to reconvene the
hearing in order to introduce the testimony of Chester Hundley,
an alleged eyewitness to the accident. Hundley had informed
employer six days after the June hearing that he had witnessed
Kiser's fall, but failed to say anything because he did not know
that a claim had been filed. Employer asserted that it had
attempted to interview all potential witnesses, but because of
the large number of workers employed at the facility, it had
neither prior knowledge nor reason to believe that Hundley had
witnessed Kiser's fall.
Over claimants' objection, the deputy commissioner
reconvened the hearing on October 24, 2000, for the limited
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purpose of taking Hundley's testimony. 1 Hundley testified that
he was walking through the plant when he saw Kiser standing near
his workstation. He was approximately eight feet away when he
saw Kiser fall. He testified that he saw nothing for Kiser to
trip on, but that he just leaned left and fell down.
The deputy commissioner, finding Hundley's testimony "quite
compelling," held, in an October 25, 2000 opinion, that
claimants failed to prove that Kiser sustained an injury by
accident arising out of his employment, and denied benefits.
Claimants requested review by the full commission, arguing that
the after-discovered evidence rule should have been applied.
Upon review, by opinion on March 18, 2002, the commission
found that the after-discovered evidence rule did not apply. It
reasoned that, because the record had remained open, even if
only for medical evidence, the deputy commissioner had
discretion to consider additional evidence that was not
reasonably available before the hearing, provided that the
parties had an opportunity to rebut and cross-examine the
evidence. It vacated the decision and remanded the matter back
to the deputy commissioner to determine whether Hundley's
testimony was not reasonably available before the first hearing.
On remand, by opinion dated March 21, 2002, the deputy
commissioner found that the evidence established that Hundley's
1
Hundley was an employee at the time of the accident, but
was no longer employed by employer at the time of the hearing.
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testimony was not reasonably available to employer before the
first hearing. The evidence showed that Hundley's witnessing of
the accident was random and that because Hundley was unaware of
claimants' pursuit of workers' compensation benefits, he did not
know his testimony was necessary.
Claimants requested review of the opinion, again urging the
commission to apply the after-discovered evidence rule. Once
again, the commission rejected application of that rule, finding
that the employer met the "not reasonably available" standard as
set forth in its prior opinion. The commission noted that in
this case, claimants were allowed three months to conduct
additional discovery in response to Hundley's testimony, and
were afforded ample opportunity to cross-examine the witness.
This appeal followed.
II. Analysis
In accordance with well established principles, we consider
the evidence in the light most favorable to the party prevailing
below. States Roofing Corp. v. Bush Constr. Corp., 15 Va. App.
613, 616, 426 S.E.2d 124, 126 (1993). "Factual findings by the
commission that are supported by credible evidence are
conclusive and binding upon this Court on appeal." So. Iron
Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34
(1993). The commission's findings, if supported by credible
evidence or reasonable inferences drawn from the evidence, will
not be disturbed upon review, even though the record may contain
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evidence to support a contrary finding. Morris v. Badger
Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d
876, 877 (1986).
Claimants' continued assertion that the after-discovered
evidence rule, as required by Rule 3.3 of the Rules of the
Virginia Workers' Compensation Commission, and Williams, 19
Va. App. 530, 452 S.E.2d 881, applies to this case is incorrect.
The application of that rule is appropriate when a party seeks
to introduce new evidence at the "time of review." This case
was still pending decision by the deputy commissioner when he
decided to reconvene the evidentiary hearing to take Hundley's
testimony and, therefore, was not under "review," as
contemplated in Rule 3.3 and the Williams case.
The commission applied the "not reasonably available"
standard in determining that the deputy commissioner had not
abused his discretion by taking witness testimony when the
record had been left open for medical evidence. The commission
has authority to decide how its hearings shall be conducted.
The "[c]ommission is afforded considerable latitude in adapting
the conduct of hearings to the circumstances of the case." Kim
v. Sportswear, 10 Va. App. 460, 470, 393 S.E.2d 418, 424 (1990).
"Except for rules which the Commission promulgates, it is not
bound by statutory or common law rules of pleading or evidence
nor by technical rules of practice." Rule 2.2, Hearing
Procedures, Rules of the Virginia Workers' Compensation
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Commission. See also Rule 1.12 (commission has authority to
enforce its rules); and Arellano v. Pam E. K's Donuts Shop, 26
Va. App. 478, 495 S.E.2d 519 (1998) (commission has the power to
interpret its own rules).
Code § 65.2-201(A) (General duties and powers of the
Commission) states, "It shall be the duty of the Commission to
administer this title and adjudicate issues and controversies
relating thereto. The Commission shall make rules and
regulations for carrying out the provisions of this title."
Thus, the commission is within its own authority to devise a
test for determining whether to reconvene an evidentiary
hearing.
"When a challenge is made to the commission's construction
of its rules, the appellate court's review is limited to a
determination of whether the commission's interpretation was
reasonable. The commission's interpretation will be accorded
great deference and will not be set aside unless arbitrary or
capricious." Rusty's Welding Serv., Inc. v. Gibson, 29 Va. App.
119, 129 n.2, 510 S.E.2d 255, 260 n.2 (1999) (citations
omitted); Arellano, 26 Va. App. at 483, 495 S.E.2d at 521
(citing Classic Floors, Inc. v. Guy, 9 Va. App. 90, 93, 383
S.E.2d 761, 763 (1989)). This Court finds that the commission's
interpretation of its standard for admission of evidence is
reasonable and that credible evidence supports the commission's
finding that employer satisfied the "not reasonably available"
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standard as set forth in its March 18, 2002 opinion.
Accordingly, we affirm the decision of the commission.
Affirmed.
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