Allied Signal, Inc. v. Karin A. Persinger ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
ALLIED SIGNAL, INC.
AND
TRAVELERS INDEMNITY CO. OF ILLINOIS
MEMORANDUM OPINION*
v. Record No. 1505-99-2 PER CURIAM
NOVEMBER 16, 1999
KARIN A. PERSINGER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. Vernon Priddy, III; Mary Louise Kramer;
Patsy L. Mundy; Sands, Anderson, Marks &
Miller, on brief), for appellants.
(Ruth E. Nathanson; Maloney, Huennekens,
Parks, Gecker & Parsons, on brief), for
appellee.
Allied Signal, Inc. and its insurer (hereinafter referred
to as "employer") contend that the Workers' Compensation
Commission (commission) erred in (1) its application of this
Court's holding in Goodyear Tire & Rubber Co. v. Pierce, 5 Va.
App. 374, 363 S.E.2d 433 (1987), aff'd after remand, 9 Va. App.
120, 384 S.E.2d 333 (1989); and (2) failing to address and
reverse the deputy commissioner's refusal to admit Karin
Persinger's (claimant) deposition into the record as substantive
evidence. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
I.
Employer singled out one statement contained in the full
commission's opinion as the basis for its argument on this
issue. That statement read as follows: "[T]he Deputy
Commissioner had the advantage of observing the claimant and is
in a better position to judge credibility. We cannot
arbitrarily disregard her finding." Employer argues that
because the deputy commissioner made no credibility findings
based on appearance or demeanor, the full commission was free to
make its own credibility determination and erred in failing to
weigh the relative credibility of the conflicting witnesses,
misapplying and overstating the rule announced in Goodyear.
The commission's opinion thoroughly recites the testimony
of the witnesses and the content of the medical records. The
commission recognized that the issue of whether claimant proved
a compensable injury by accident was "highly factual" and
depended largely upon the credibility of the witnesses.
Regardless of the commission's citation to Goodyear, its
opinion, taken as a whole, unequivocally shows that the
commission weighed the testimony of the witnesses and agreed
with the deputy commissioner's determination that claimant's
testimony was credible and consistent with the medical records.
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In short, the full commission simply found no reason to
reverse the deputy commissioner's credibility determination and
did not abuse its discretion by adopting the deputy
commissioner's findings rather than reversing her decision.
Goodyear prohibits the commission from arbitrarily disregarding
the deputy commissioner's credibility determination where it is
based upon demeanor or appearance. 5 Va. App. at 382, 363
S.E.2d at 437. However, nothing in Goodyear prohibits the
commission from weighing the evidence and adopting the deputy
commissioner's credibility determination where it is based upon
the substance of the witnesses' testimony.
Because the commission's factual findings are supported by
credible evidence, we will not disturb them on appeal. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
II.
At the hearing, the deputy commissioner agreed to make
claimant's deposition part of the record, stating that she would
rely upon claimant's live testimony unless something in the
deposition contradicted and impeached her testimony. We find no
merit in employer's argument that the commission erred in
failing to admit the deposition as substantive evidence.
The deputy commissioner did, in fact, admit the deposition
into the record, albeit for impeachment and rebuttal purposes.
Furthermore, employer has cited to nothing in the deposition
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that the deputy commissioner refused to consider and which would
have had any bearing on the issues in this case. Thus, even
assuming, without deciding, that the deputy commissioner erred
in failing to admit the deposition as substantive evidence, such
error was harmless.
For these reasons, we affirm the commission's decision.
Affirmed.
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