COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
CENTRAL VALLEY RUBBER SERVICE
and ZURICH-AMERICAN INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1494-96-3 JUDGE SAM W. COLEMAN III
MARCH 11, 1997
VICKI L. ARTHUR
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
C. Ervin Reid (William R. Culbreth; Wright,
Robinson, McCammon, Osthimer & Tatum, on
brief), for appellants.
Rhonda L. Overstreet (Gary L. Lumsden;
Lumsden & Overstreet, on brief), for
appellee.
Central Valley Rubber Service and Zurich-American Insurance
Company (employer) appeal the commission's award of temporary
total benefits to Vicki L. Arthur (claimant) on the ground that
the commission failed to state a sufficient basis for overruling
the deputy commissioner's credibility determination of the
claimant and an eyewitness. Finding no error, we affirm the
commission's decision.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the evidence proved that the claimant worked as a
shipping and receiving clerk for Central Valley Rubber Service.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
As a part of her job, she was required to assist in unloading
delivery trucks. On the date she was injured, the claimant was
attempting to help Roger Smith, an employee of Estes Express
Line, remove two rubber belts from his truck. The belts were
rolled into cylinders about two and one-half feet in diameter and
three and one-half feet in length.
Because the rolls filled the entire width of the truck, the
claimant testified that she used a steel pipe to attempt to pivot
one of the rolls so it could be removed from the truck. She
stated that the rolls were not secured by "chock" blocks. As she
was trying to move the roll, it slipped off the pipe and pinned
her right leg between the roll and the side of the trailer. The
claimant testified that she told Roger Smith, who was standing
about five feet away, that she had "pinched" her leg, but she
continued to work. She also told the "inside sales guy" right
after the incident that she had "pinched" her leg. James
Carpenter, the employer's operation manager, testified that the
inside salesman told him about the accident the next day.
Medical records introduced by the claimant prove that she
suffered a severe contusion to her right leg secondary to a
crush-type injury. The records also show that she reported to
the doctors that her leg was injured when she was pinned between
the roll and the trailer.
Testifying by deposition, Roger Smith said that the rolls
had been "chock" blocked so they would not roll and damage other
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freight. He testified that he and the claimant tried to move one
of the rolls but could not do so. After the claimant and Smith
could not move the roll, the claimant asked two other men to
help. Smith testified that the claimant stood at the back of the
truck with him while the two men moved the rolls. He had not
seen the claimant's leg get caught earlier, and he denied that
the claimant told him she had been hurt. He testified that he
did not learn of the alleged accident until he finished his route
and his dispatcher asked "if there was an accident on my truck
because he was concerned that there might have been an accident
and I didn't report it."
After hearing the evidence, the deputy commissioner denied
the claim, finding that the claimant was not credible based
"partly upon [her] demeanor, partly upon the substance of her
testimony, and partly upon a comparison of that testimony with
the account given by Roger Smith, whom we believe to be a
disinterested third party." The deputy thought the claimant's
testimony was "vague and tentative" and she did not impress the
deputy as being "a straightforward, truthful individual."
Upon review, the commission reversed the deputy's decision
and awarded the claimant temporary total disability benefits.
The commission found that, while the claimant was unsure of some
details, her testimony was not inherently incredible and the fact
that she was injured by an accident on the job as she claimed was
corroborated by other evidence. The commission also found that
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Smith was not a disinterested third party because "he may have
violated his company's policy in not reporting the incident" and
therefore had a pecuniary interest in his continued employment
that could have influenced his testimony.
It is well settled that the commission may make factual
findings that differ from those made by a deputy commissioner,
including a credibility determination based upon appearance and
demeanor, as long as the commission articulates a basis for its
differing conclusion which is supported by credible evidence in
the record. Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App.
120, 123, 384 S.E.2d 333, 335 (1989); Williams v. Auto Brokers,
6 Va. App. 570, 575, 370 S.E.2d 321, 324 (1988). The commission
may "evaluate the testimony of witnesses in the light of human
experience, ascertain which testimony is more worthy of belief,
and grant to it its appropriate weight." Pierce, 9 Va. App. at
126-27, 384 S.E.2d at 337.
Here, the commission stated the reasons for its factual
findings and explained why its findings differed from those of
the deputy, including the deputy's credibility determinations.
The reasons given for the commission's factual findings are
sufficient and are supported by credible evidence in the record.
The employer contends that the holding in Rust Engineering
Co. v. Ramsey, 194 Va. 975, 76 S.E.2d 195 (1953), is dispositive
in this case. In Rust, the Virginia Supreme Court held that the
commission's decision to reverse factual findings of a deputy was
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unsupported by credible evidence. Id. at 978, 76 S.E.2d at
197-98. However, the factual scenario in Rust differs
significantly from this case. In Rust, the claimant gave two
different versions of how he was injured, and neither version was
corroborated by other evidence. Additionally, several witnesses
who were present when the claimant alleged he was injured
testified that they did not see any unusual occurrence. Id. at
978, 76 S.E.2d at 197. In Rust, no credible evidence proved that
the claimant suffered an injury by accident that arose out of or
during his employment.
In the case at bar, the claimant's testimony about the
accident was consistent and was corroborated by the employer's
operations manager and the claimant's medical records. Although
the only eyewitness testified that he did not see an accident and
that the claimant did not tell him she was hurt, the commission
found that he was not a disinterested witness and also found that
the incident, admittedly minor when it happened according to the
claimant, could easily have been disregarded or overlooked by the
witness.
The commission articulated a sufficient basis for making
factual findings different from those made by the deputy
commissioner, and we find that credible evidence exists in the
record to support the commission's decision. Accordingly, we
affirm the commission's award of temporary total benefits to the
claimant.
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Affirmed.
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Central Valley Rubber Service, etc. v. Vicki Arthur
Combined Opinion