COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Hodges
Argued at Alexandria, Virginia
ARLINGTON RENAISSANCE HOTEL and
HARTFORD UNDERWRITERS INSURANCE COMPANY
v. Record No. 0176-95-4 MEMORANDUM OPINION BY *
CHIEF JUDGE NORMAN K. MOON
MARIA ESTHER RAMIREZ OCTOBER 24, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin J. Trichilo (Trichilo Bancroft, McGavin,
Horvath & Judkins, P.C., on briefs), for appellants.
(Arturo Hernandez, on brief), for appellee.
Arlington Renaissance Hotel and Hartford Underwriters
Insurance Company appeal a Workers' Compensation Commission's
award to Maria Esther Ramirez on account of an injury she
sustained while at work. Appellants maintain that the commission
arbitrarily disregarded the deputy commissioner's determination
that Ms. Ramirez was untruthful concerning her injury and that as
a matter of law Ramirez did not describe a compensable injury.
Ramirez, a housekeeper, testified that she was squatting for
seven to eight minutes cleaning a bathroom and when she stood up
her left leg was numb. She stated that as she began to walk she
twisted her left ankle and fell to the floor. The deputy
commissioner found her not credible because she was confused
about the date of the injury and because her testimony was
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
different than earlier descriptions of the injury. The primary
difference was her failure to mention numbness to her employer or
doctors' confusion over the date of injury. The commission
reversed the deputy's finding on credibility, and found that
working in the squatting position caused her leg to go numb,
which caused her to fall when she walked. On that basis, the
commission awarded benefits.
The appellants argue that the commission arbitrarily
disregarded the deputy's findings on credibility, and that
reversal is required by Goodyear Tire & Rubber Co. v. Pierce, 5
Va. App. 374, 363 S.E.2d 433 (1987). In that case, we held that
where the deputy's findings are based on a specific, recorded
observation of a witness' demeanor or appearance, the commission
cannot arbitrarily disregard such findings. Pierce, 5 Va. App.
at 382-83, 363 S.E.2d at 437-38. However, the commission may
reverse a deputy's findings, including a credibility
determination based on appearance and demeanor, if it articulates
a basis for its different conclusion that is supported by
credible evidence in the record. Williams v. Auto Brokers, 6 Va.
App. 570, 573, 370 S.E.2d 321, 323 (1988). If the deputy's
credibility determination is based on the substance of the
testimony or other evidence in the record, the credibility issue
is "as determinable by the full commission as by the deputy."
Pierce, 5 Va. App. at 383, 363 S.E.2d at 438. In such cases, the
commission has no duty to explain its reasons for believing one
witness over another, although its conclusion must of course be
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supported by credible evidence. Bullion Hollow Enterprises, Inc.
v. Lane, 14 Va. App. 725, 729, 418 S.E.2d 904, 907 (1992).
Here, the deputy's determination on credibility was based
primarily on testimony and other evidence in the record, with
only a passing reference to "the demeanor of the witnesses." The
commission reviewed the evidence in the record and decided that
the claimant was credible, rejecting the deputy's finding to the
contrary because it was influenced by the claimant's confusion
over the date of injury. While the commission did not
specifically address the deputy's statement concerning demeanor,
it was not required to do so because the deputy made no
"specific, recorded" observation about demeanor. Also, a deputy
commissioner cannot render his findings of fact unreviewable
simply by asserting that his conclusion on credibility was based
on appearance and demeanor. Williams v. Auto Brokers, 6 Va. App.
at 574, 370 S.E.2d at 323.
Here, the commission based its determination that claimant's
testimony was credible upon a finding that her "description of
the accident is consistent throughout all reports." Because the
record does not support a finding that her testimony was
consistent throughout all reports in the material facts upon
which claimant relies to support her claim's compensability, we
reverse.
After claimant had discussed her accident with her employer
and her physician, never mentioning to anyone her leg being numb
from squatting, her attorney more than a month later, filed the
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initial Claim for Benefits stating that claimant's leg was numb
from squatting. Claimant repeated this accident description in
her testimony, and the commission relied upon it as proof of the
cause of her fall.
We quote from Commissioner Joyner's dissent what the record
shows regarding the reports of claimant's fall.
The employer offered the testimony of Sandra
Jones, a personnel officer. Jones testified that July
11, 1993, was a Sunday and that the claimant did not
work that day. Jones further testified that when she
reported the accident on July 14, 1993:
. . . She told me, she really didn't know what
happened, just that she had hurt her foot. She
didn't know how it happened or exactly when it
happened. Just that she had hurt her foot and she
was going to the hospital. (Tr. 24)
However, Jones acknowledged that the claimant did work
Monday, July 12, 1993. The Employer's First Report of
Accident completed by Jones was then made part of the
record (Tr. 28). That report reflects an accident
occurring on Monday, July 12, 1993, which was reported
on Tuesday, July 13, 1993. The report apparently was
completed on July 14, 1993, and was based on the
information provided by the claimant. Therefore, at
this point, one or possibly two accident dates have
been alleged, with a history that does not include any
complaints of squatting or numbness. Evidence has been
offered as to probable dates between July 10 and July
14. The claimant reported to the employer, as well as
to Dr. Evans, that she was simply walking out of the
bathroom or a bedroom when she twisted her foot. She
offered no rebuttal evidence as to the accident date
nor any explanation of the various accident dates noted
above. Neither did the claimant offer any explanation
as to the incomplete report to the employer and to Dr.
Evans. The first indication of leg numbness appears in
the initial Claim for Benefits filed by claimant's
counsel on August 23, 1993.
Without the testimony of her leg numbness from squatting, there
would be no credible evidence to support an award in this case.
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The proof would be of no more than an unexplained fall which is
not compensable. Memorial Hosp. v. Hairston, 2 Va. App. 677, 347
S.E.2d 527 (1986). An unexplained fall is what claimant reported
at every reported stage until her attorney filed the initial
Claim for Benefits over a month after the accident.
Thus, because the commission's conclusion concerning
claimant's credibility is not supported by the record, we reverse
the award and remand the claim for reconsideration of whether
claimant's testimony supporting the award was credible.
Reversed and remanded.
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