In my previous post, I told you that we would take a look at how the full Commissioners of the Virginia Workers’ Compensation Commission deal with factual determinations made by the Deputy Commissioners at the evidentiary hearing stage. Since the Deputy Commissioners (DC’s) have the opportunity to observe the witnesses testify firsthand, and the appearance and demeanor of the witness while testifying is an accepted part of making a credibility finding, how do the rules and procedures of the Commission allow the Commissioners to take the DC’s observations into account when attempting to make decisions based on the “entire record”? Put another way, how much deference is due to the DC’s factual determinations, and how are these determinations conveyed to the Commissioners by the frontline hearing officers, the Deputy Commissioners?
When they review the case decision of the DC’s, the Commissioners have access to the entire record compiled below, consisting of the transcript of the evidentiary hearing made from a tape recording of the testimony as it is offered as well as discussions with counsel, copies of all exhibits, each party’s medical designations (those portions of the medical record which each side feels is most relevant to the issue(s) before the Commission), and anything else that came before the DC at the evidentiary hearing. However, the Commissioners do not see the live testimony of the witnesses. The record closes on a case sometime after the evidentiary hearing so, presumably the Commissioners have all the other evidence available to them which was available to the DC. As part of the written opinion which the DC files in each case she/he hears, the DC makes a statement of the law and a finding of the facts. To what extent do the Commissioners make their own findings of fact and to what extent do they accept (defer to) the findings made by the DC based on the hearing?
The difference in what information the DC has available from which to make a decision and the information from which the Commissioners must decide the issues is that the DC actually sees and hears the witnesses who present live testimony at the hearing. The Commissioners can read what the witness said in the transcript; they can even listen to the tape-recorded hearing to get some feel for the tone and vocal inflections of the witness. What they do not have is the opportunity to observe at firsthand the witness as he/she testifies. “A witness’ credibility may, in part, be determined by his appearance and demeanor upon testifying.”
17 Va. App. 173, 435 S.E.2d 596 (1993) (emphasis supplied.)
While the Commission is not compelled to follow the DC’s findings on credibility of the witnesses, (“[N]o statute or caselaw
supra at 122, 384 S.E.2d at 334.
A difference of opinion has developed among the Commissioners as to how explicit and extensive a DC’s findings of credibility need to be in order to be entitled to this deferral. In some cases, it is relatively easy to decide that the evidence from the hearing is enough to carry through to the full Commission. Compare the characterizations of the Deputy Commissioners’ credibility findings in these two (2) recent cases:
The Deputy Commissioner made specific credibility findings. He “credited”
the testimony of the defense witness and did not believe the claimant that
the truck backed into him. He then credited the defense witnesses’ testimony
that the claimant was singing and dancing while wearing his ear buds and
that he backed into the truck himself. Given these findings, to which we defer,
we agree with the deputy Commissioner ….
JCN: VA02000025718, OP at 5. (June 21, 2017).
In this case, the Deputy Commissioner made no explicit findings based upon
the appearance or demeanor of a witness at the hearing. He did reject
the claimant’s testimony as lacking in credibility and credited other witness
testimony. After a careful review of the evidence in the record, I find no
reasonable basis to reverse the Deputy Commissioner’s conclusions.
JCN: VA00000925044, OP at 7, Marshall concurring. (Apr. 9, 2015).
In some cases, while the DC does not make an explicit credibility finding, the posture of the case makes the determination of credibility obvious. In other cases, the witness’ credibility can be bolstered by the circumstances in which the case occurs. The Commission will also admit to finding an implicit credibility determination in certain cases. The following holdings from recent decisions by the Commission illustrate these last points:
We also note that a finding against one party’s credibility was necessarily
required in this case, as the testimony of the claimant is irreconcilable with
that of [the employer’s witnesses.]
JCN: VA00000573190, OP at 4 (Sept. 23, 2013).
We defer to the Deputy Commissioner’s finding that the claimant
continued to have causally related symptoms and disability, including her
assessment of the claimant’s credibility. The Deputy Commissioner found
the claimant’s testimony lacking in credibility on some issues and credible
on others. Considering all the evidence, she found the claimant continued
to suffer pain causally related to the accident. The Deputy Commissioner
relied upon the claimant’s consistent physical complaints since the accident.
JCN: VA00000634261, OP at 7 (Oct. 8, 2013).
Although the Deputy Commissioner did not explicitly state whether his credibility
determinations were based on the appearance &[sic] demeanor of the claimant
or the substance of her testimony, we find that the misinformation provided by
her and contradicted by other evidence in the record is more than sufficient to
support his conclusions.
JCN: VA02000012199, OP at4-5 (Oct. 15, 2013).
The Deputy Commissioner did not find that the claimant
had proven her injury resulted from an identifiable accident. In
order to make that determination, she had to weigh the evidence
provided and make credibility determinations…. The Deputy Com-
missioner specifically cited differences in the version of events
described by the claimant and [a witness] during the … the hearing
as well as the medical records and recorded statement of the claimant.
We find no reason in this case to depart from our usual practice of
deference to the findings of the Deputy commissioner, and we
accordingly adopt her findings and conclusions as our own.
JCN: VA00000645052, OP at 4-5 (June 23, 2014).
The Deputy Commissioner considered the claimant’s
testimony in reaching her decision …. She implicitly found
the claimant’s testimony unreliable…. We agree with her implicit
assessment of the claimant’s credibility.
JCN: VA00001199900, OP at4 (emphasis supplied.) (June 15, 2017).
The Deputy Commissioner stated in her Opinion that she
“considered all the relevant medical records submitted, testimony
and evidence in the entirety” and after having considered all
the evidence, she found the claimant’s “testimony persuasive in describing
JCN: VA 02000015805, OP at 6 (Jan. 5, 2017).
He [the Deputy Commissioner] determined the claimant to be an
“extremely credible witness,” which was based upon “her demeanor
and facial mannerisms at the hearing.”
JCN: VA00001208986, OP at 5 (Mar. 30, 2017.
Whether the employee acted in good faith in seeking non-approved
medical treatment is a credibility determination.
JCN: 1265213, OP at 4 (Dec. 11, 2013).
We defer to the Deputy Commissioner’s credibility determination,
and agree with his assessment that “[t]he ruling in this matter
revolves solely on the credibility of the witnesses.”
JCN: VA02000012794, OP at 3 (Feb7, 2014).
While the Deputy Commissioner made a generalized credibility finding,
he did not articulate a detailed basis for it, and therefore we are free to
consider the evidence.
JCN: VA00000920622, OP at 5 Marshall concurring (emphasis supplied.) (Apr. 2, 2015).
This last statement from Commissioner Marshall’s separate concurring opinion leads us to the current difference among the Commissioners as to when it is appropriate to defer to the facts as found by the DC following an evidentiary hearing, and when the Commissioners should retain their roles as factfinders and determine the weight to be given to (or withheld from) the evidence presented. Additionally, if the Commission is going to reach a different interpretation of the evidence, upon what basis do they justify the different finding? This post has already exceeded my anticipation regarding its length, so I will have to impose on the reader to peruse the next installment (part 3) of “To Defer or Not To Defer,” which I promise to post soon, for the conclusion of this issue of deferral.