Pine Ridge Lansdcaping, etc. v. Ergil R. Solorzano ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
PINE RIDGE LANDSCAPING, INC.
AND
HARLEYSVILLE MUTUAL INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1386-95-4 OCTOBER 24, 1995
ERGIL R. SOLORZANO
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cathie W. Howard; Williams & Pierce, on brief), for
appellants.
(Joseph T. Trapeni, Jr.; Trapeni, Romero & Malouf, on
brief), for appellee.
Pine Ridge Landscaping Incorporated and its insurer
(hereinafter collectively referred to as "employer") appeal a
decision of the Workers' Compensation Commission (commission)
that denied employer's application to vacate a June 30, 1993
award ("the award") in favor of Ergil R. Solorzano (claimant).
Employer contends that the commission erred in denying its
application on the basis that it failed to prove by clear and
convincing evidence that claimant fraudulently procured the
award. Finding no error, we affirm the commission's decision.
The commission has the implied power to vacate an award
where, by clear and convincing evidence, the moving party proves
that the award was procured by fraud or mutual mistake. Harris
v. Diamond Constr. Co., 184 Va. 711, 721-22, 36 S.E.2d 573, 578
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1946). In this case, the commission held that employer did not
meet its burden of proving fraud or misrepresentation by clear
and convincing evidence. In so ruling, the commission found as
follows:
The employer's evidence consists solely of
Lopez's testimony that he was paid $200 to
testify for the claimant at the initial
Hearing, as well as a written statement to
the same effect. The written statement was
procured approximately 19 months after
Lopez's first testimony and under
circumstances which call into question the
validity of the statement. He was brought
into the employer's office after an initial
conversation in which Cumberland, Jr., spoke
to him in a raised voice, causing him to be
afraid. In the office, Shively prepared a
statement in English which Lopez then
transcribed into Spanish and signed. We note
that he speaks only limited English and
required a translator at both Hearings.
Lopez testified that, at the time he prepared
this statement, he was afraid that he might
be assaulted.
* * * * * * *
In the Hearing held in December 1994, 24
months after the initial Hearing, Lopez
testified that he lied at the first Hearing
and that his written statement and current
testimony were given of his own free will and
were truthful. It is clear that he testified
falsely in one of the Hearings. However, it
is unclear as to which testimony was
truthful. The claimant testified that he did
not pay Lopez to testify for him. No other
evidence was presented, except for the
testimony to the effect that Lopez was not
threatened.
Unless we can say as a matter of law that employer's
evidence sustained its burden of proving fraud by clear and
convincing evidence, the commission's findings are binding and
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conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va.
697, 699, 173 S.E.2d 833, 835 (1970). Based upon the nineteen-
month period between the initial hearing and Lopez's written
statement; the possibility that Lopez was threatened or forced
into giving the statement; Lopez's uncertainty as to exactly what
he lied about at the first hearing; and claimant's denial that he
paid $200 to Lopez, we cannot say as a matter of law that the
commission erred in finding that employer failed to establish
fraud by clear and convincing evidence.
Furthermore, we find no merit in employer's contention that
the commission erred in rejecting the deputy commissioner's
credibility determination. The deputy commissioner's finding
that employer proved that claimant fraudulently obtained the
award was based upon the substance of employer's witnesses'
testimony at the December 6, 1994 hearing. There is nothing in
the deputy commissioner's opinion to indicate that the decision
was based upon demeanor or appearance. Accordingly, the
credibility issue was as determinable by the full commission as
it was by the deputy. Goodyear Tire & Rubber Co. v. Pierce, 5
Va. App. 374, 383, 363 S.E.2d 433, 438 (1987); see also Kroger
Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 880-81
(1992). Moreover, the full commission adequately articulated its
basis for rejecting the deputy commissioner's decision.
For the reasons stated, we affirm the commission's decision.
However, we remand this case for the commission to correct page
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six of its opinion to accurately reflect the date upon which the
award was terminated pursuant to the December 6, 1993 Agreed
Statement of Fact (as referred to in employer's June 13, 1995
letter and the commission's June 28, 1995 letter).
Affirmed and remanded.
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