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Instruction No. 2.020. Today’s post looks at this process as it plays out in Workers’ Compensation cases.

Weighing the evidence is closely associated with the concept of the burden of proof. Remember that for the party charged with the burden of proof, it is not good for the scales to be perfectly balanced (the evidence is in “equipoise.”
JCN: VA00000505988 [Dec. 9, 2013].) It must tip ever so slightly in the party’s favor (the greater weight of the evidence) in most civil cases, clearly in that party’s favor (clear and convincing evidence) for some special civil doctrines such as occupational illness, or dramatically in favor of the state (beyond a reasonable doubt) in criminal cases.

Consider this quotation from a recent Commission opinion which is “boilerplate” language for any opinion dealing with medical causation:

“Causation is usually proven by medical evidence.” Clinch Valley Med. Ctr. v. Hayes, 34 Va. App. 183, 192, 538 S.E.2d 369, 373 (2000). Medical evidence which is presented, however, “is subject to the commission’s consideration and weighing.” Hungerford Mech. v. Hobson, 11 Va. App. 675, 401 S.E.2d 213, 215 (1991). When such evidence is analyzed the treating physician’s opinion is ordinarily given great weight. See Pilot Freight Carriers v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986). However, “the commission is not required to accept the treating physician’s opinion over the opinion of others.” Baum v. Sports Auth., No. 2503-92-4 (Va. Ct. App. Dec.14, 1993). If contrary medical opinions are presented, or if the treating physician’s opinion is “shaded by doubt,” “the trier of the fact is left free to adopt that view which is most consistent with reason and justice.” Id.

Lillian Baker v. Christopher Newport University, JCN: VA02000019372 (May 22, 2017), (some citations omitted). The language cited above is replete with references to weighing the evidence, which evidence is given special weight, and what to do when certain evidence is “shaded by doubt.” It concludes with the optimistic observation that the trier of fact is free to adopt “that view which is most consistent with reason and justice.”

In such cases, the next portion of the opinion usually begins like this: “The Deputy Commissioner weighed the medical evidence and considered the claimant’s testimony. She found Dr. Brown’s opinions more persuasive especially in light of the claimant’s credible testimony concerning her lack of symptoms prior to the injury.” Id. The full Commission then declares that it has “carefully considered the evidence and find it supports the Deputy Commissioner’s opinion.” Id. There is then some showing of how the testimony is corroborated by the medical documents, the prior pleadings filed in the case, if any, and often a statement on the witness’s credibility based on observations made of the witness while in the act of testifying. The Commission’s jurisprudence permits the Deputy Commissioners, who hear the witnesses testify live before them, to make observations concerning their assessment of the witness’ credibility. “A witness’ credibility may, in part, be determined by her appearance and demeanor upon testifying.” Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). “Traditional principles dictate, both in civil and criminal law, that the determination of a witness’ credibility is within the fact finder’s exclusive purview because he has the best opportunity to observe the appearance and demeanor of the witness.” Id. The Court of Appeals has stated that when a Deputy Commissioner makes “a specific, recorded observation of a key witness’ demeanor or appearance in relation to credibility as an aspect of the hearing that the commission may not arbitrarily disregard” that finding unless the Commission can “offer a rationale for its reversal and demonstrate on the record how the commission found” otherwise. Goodyear Tire & Rubber Co. v. Pierce
9 Va. App. 120, 122, 384 S.E.2d 333, 334 (1989) (emphasis added).

The trier-of-fact must decide which portion of the overall evidence admitted in the case is most trustworthy. Consider these remarks from opinions by the Commission: Claimant’s testimony does not need to be corroborated, but it must be credible and
Walsh Construction Co. v. London, 195 Va. 810, 80 S.E.2d 574 (1954) (emphasis added). Where the claimant’s testimony is not “inherently incredible,” the Commission will look to his testimony and the medical record to determine whether he has met the burden of proving that a condition of employment caused the accident. Sinkfield v. Aerotech Contract Engineering Serv., 76 O.W.C. 493 (1997). Speaking of “inherently incredible,” after summing up the reasons why the Commission found that the claimant had not carried his burden of proof, including that his version of the accident was refuted by the defense witnesses, the medical record did not support the claimant’s alleged serious injury, and the fact that the claimant failed to admit recent medical treatment for similar symptoms, the Commission concluded that the claimant’s version of events “is a product of exaggeration and prevarication.” Norfleet v. Eden Pellets, JCN: VA00000925044, Opinion at 4 (April 9, 2015).

Without all the fancy terminology and legalese, what does weighing the evidence mean? Essentially, it means what evidence does the trier-of-fact find more/most believable. How do factfinders decide what is most believable? They do what we all do as we go through life: they observe the witness as he/she testifies to see if the witness shows signs of telling a falsehood such as hesitation to answer, failure to make eye contact with the questioner, fidgeting in the witness chair, etc. (Basically, they use the same types of clues that your mother used when she could always tell if you were being honest with her.) They compare the witness’ testimony with the testimony of the other witnesses for agreement on the basic facts and circumstances, and they compare the witness’ present testimony with his/her previous statements and against the factual record. Is the system perfect? Most assuredly the answer is no. But, as the gentleman said, it will do until the perfect system comes along.

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