Recently, a difference of opinion has developed among the Commissioners as to how explicit and extensive a Deputy’s findings of credibility need to be in order to be entitled to this deferral process. How do the two positions represented on the full Commission differ, and is there any indication of a pending schism on the Commission? My answers to these questions are “Not much” and “no.” The three current Commissioners disagree over phraseology more than substance, in my evaluation. Commissioner Marshall, who has brought this squabble out into the open by filing separate concurring opinions on at least four occasions beginning in June 2014 through January of this year, has expressed concern that the full Commission has surrendered some of its factfinding authority to the Deputy Commissioners by considering “every Deputy Commissioner’s finding [] as being based upon credibility and as a necessary adjunct adopt[ing] a modified standard of review.” Covington v. Chesterfield County, JCN: VA00000645052, OP at7 (Marshall, concurring) (June 23, 2014). At the center of the disagreement is the Virginia Court of Appeals decision in Virginia Real Estate Board v. Kline, 17 Va. App. 173, 435 S.E.2d 596 (1993). The Commissioners, including Commissioner Marshall, routinely cited Kline as authority for the statement, “In most instances, we defer to a deputy commissioner’s credibility determinations regarding witnesses he or she has observed firsthand and from whom impressions were formed.” Karikari v. Giant 773, JCN: VA00000538751 (June 18, 2013). I note that the Karikari opinion, which Commissioner Marshall wrote, predates his first separate concurring opinion on this question of deferring to the DC’s factfinding in Covington, by only five (5) days. Whether he had a “road to Damascus” epiphany or something a bit less dramatic, Commissioner Marshall, through his separate concurring opinions, began a campaign to discredit Kline as good authority for, in Marshall’s opinion, an overly deferential attitude toward the DC’s factual determinations in the cases reviewed by the full Commission.

He began by declaring that he did not join the majority in its interpretation of, or reliance upon Kline. “The majority’s ruling that, ‘[i]n most instances, we defer to the Deputy Commissioner’s credibility determinations,’ is not a correct statement of the law derived from the Kline case.” Karikari, supra, OP at 7 (Marshall concurring). He quickly delivered a body blow to the majority’s misplaced reliance on Kline. That decision was not even a workers’ compensation case. Marshall pointed out that the discussion in Kline focused on the factfinder’s conclusion which was based on the factfinder’s firsthand observation of the witness’ testimony and specifically on the witness’ demeanor. Id. That type of specific credibility finding “is distinguishable from a generalized credibility finding which is not related to any recorded observations of the demeanor or appearance of a witness at a hearing.” Id. Marshall obviously felt (feels) that his colleagues on the Commission are too prone to see every factual finding by the DC’s as being based on credibility and to defer excessively to the DC’s factfinding no matter how disconnected that factfinding is from firsthand observation of the witnesses as they testify. Id. Marshall pointed out that every factfinder must make judgments about the weight of the evidence which may implicate to different degrees the witness’ credibility. Id.

To what degree, if any, has Commissioner Marshall’s position changed since his first concurrence? After reading his concurrence from January of this year in Ramirez v. Fairlington Meadows, JCN: VA020000015805 (Jan.5, 2017) and comparing it to his 2014 concurrence in Covington, supra, I would have to say not much. His position is, and has been, that “when a deputy commissioner makes an explicit finding of credibility based upon a witness’ demeanor or appearance at the hearing, the commission may reverse that factual finding when it articulates a basis for its different conclusion that is supported by credible evidence.

Conversely, absent an express credibility determination by the deputy commissioner, the commission has no duty to explain its reasons.”
, No. 1564-09-1 (Virginia Court of Appeals, Feb. 23, 2010), appears in both concurrences:

Established principles provide that the Workers’ Compensation

Commission is not bound by a deputy commissioner’s prior findings

on questions of witness credibility. [Citation omitted.] So long as the

commission does not arbitrarily disregard the deputy’s credibility

finding – which occurs only when the commission fails to provide a

plausible explanation for its decision – the commission remains free

to decide for itself whether to believe or disbelieve a witness.

, supra, OP at 7.

Is Commissioner Marshall having any success in persuading his colleagues to adopt a more restrained attitude toward deference to the factfinding by the DC’s at the hearing level? It would seem not. After all, there only three (3) commissioners serving at any one time. At the time of his first separate opinion, Commissioner Marshall has only needed one (1) convert to provide the majority in any opinion. So far, he has not gotten any nibbles from the other Commissioners who have served with him over the time period in which he filed his separate opinions. Due to Commissioner William’s health issues which caused him to be unavailable for periods of time, there have been four (4) possible converts who have heard the cases along with Commissioner Marshall: the late Commissioner Roger Williams, himself, when his health permitted, his temporary substitute, Chief Deputy Commissioner James Szablewicz, who sat in for Commissioner Williams when the Commissioner’s health issues caused him to be absent, Commissioner Robert Rapaport, who was appointed to the Commission following Commissioner William’s death, and Commissioner Ferrell Newman, the only one of the four who has served with Commissioner Marshall for the entire time period we have explored. To date none of that group as indicated any intent to join Commissioner Marshall’s increasingly quixotic crusade to stop creeping incrementalism in the area of deference to factfinding by the DC’s.

Some readers will probably be asking themselves what is the point of this one-man protest, especially when Commissioner Marshall is voting along with the majority anyway. After all, his difference with his colleagues is one of degree not total opposition. If the individual members of the of the Commission want to rely on a DC’s factual determinations to a greater extent than he would, as long as they reach the same result even though they employ different analytical methods of examining the evidence, why should we care if Commissioner Marshall shouts “Foul!” on his colleagues.

The answer to my self-imposed question would appear to rest in the historical framework of our Anglo-American common law and the way that legal system grows, adjusts, and expands. Unlike legal systems which re based on written codes, the common law is based on the principles of precedential additions and stare decisis, which to lawyers means to stand on the prior decisions. Those prior decisions then become precedent for those cases yet to come as judges attempt to adapt their visions of the law’s application to the facts in front of the court. If each decision expanded a particular area of the law by its use of broad language and stretching the decisional framework to the extent of 5% per year, the cumulative effect would be a change in 25% of that area within five (5) years. By calling attention to what he considers a relinquishment of the full Commission’s prerogative to exercise its own factfinding capabilities in the appropriate circumstances, perhaps Commissioner Marshall thought he might slow the Commission’s drift toward a blanket policy of treating all factual findings by the DC’s as a form of credibility determinations. Whatever his motivation for filing his separate opinions, I have to admit to an appreciation of his willingness to stand up publicly for what he believes is the correct manner to apply to the Commission’s cases on review, and to risk public criticism not only from his fellow Commissioners, but also from self-styled legal pundits like me.

Thank you for your time and attention as I have rambled through the subject of deferral to the credibility findings of the DC. As usual, I anticipated a brief and breezy discussion of the topic which I found to be of interest with a few citations to prove that I really do read the law in the areas I tackle in this blog, and, as usual, the subject got away from me when I discovered that there is much more to say on a topic than I thought possible going into the process. I hope that you find these posts to be of some interest to you; they certainly interest me. So, until the senior partners tell me to stop, tune into this space to see what I have gotten myself into next.

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