JACKSON v. KRISPY KREME DOUGHNUT, 1404-92-4, Unpublished (Va.App. 5-4-1993)

JUDGE JOHANNA L. FITZPATRICK.

Claimant appeals a decision of the Virginia Worker's Compensation Commission denying him benefits on the basis that he failed to prove a compensable injury by accident. Claimant contends that the commission erred (1) in reversing the deputy commissioner's determination of claimant's credibility and (2) by relying on defendant's Exhibit 1 (Employee's Report of Accident) and Exhibit 3 (Supervisor's Investigation Report) which were improperly admitted in evidence. We disagree and affirm the commission's decision.

The parties are familiar with the facts of this case. Accordingly, we restate only those facts necessary to explain our holding. Philip F. Jackson (claimant), is a fifty-seven year old route salesman for Krispy Kreme Doughnuts. On March 29, 1991, he suffered an injury to his back while delivering doughnuts to an office building. Krispy Kreme Doughnut Corporation and American Motorists Insurance Company (employer) denied liability for the injury on the basis that the claimant had not sustained an injury arising out of and in the course of employment.

In his application for hearing before the deputy commissioner, claimant served interrogatories on the employer pursuant to Code § 65.1-95 (now § 65.2-703). On two separate occasions, the deputy commissioner ordered employer to file complete responses to the requested interrogatories. In response, claimant's written statement was provided. During cross-examination of claimant, two additional reports, the Employee's Report of Accident and a Supervisor's Investigation Report were admitted in evidence and disclosed differing accounts of how claimant sustained his injury. Claimant objected to the admission of these reports based on employer's failure to timely provide them in response to discovery requests and their prejudicial nature.

The appropriate sanction for violating the commission's discovery order is a matter committed to the commission's sound discretion. Hudock v. Industrial Commission, 1 Va. App. 474, 482, 340 S.E.2d 168, 173 (1986). It is questionable whether these documents were specifically covered in the discovery requests, but even if they were requested, authors of both reports were available for cross-examination by the claimant at the hearing. Upon review of the record, we find no abuse of discretion by the deputy commissioner in making these reports a part of the record.

Lastly, claimant contends that the full commission is bound by the deputy commissioner's findings as to his credibility.Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 363 S.E.2d 433 (1987), appeal after remand, 9 Va. App. 120, 384 S.E.2d 333 (1989).

[A] specific, recorded observation of a key witness' demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard. When the commission does not follow such a finding, the record should indicate that the commission did not arbitrarily ignore the finding.

Id. at 382, 363 S.E.2d at 437.

We do not hold as a matter of law that the commission must hear evidence in order to reverse a decision on the grounds that the deputy commissioner incorrectly assessed a witness' credibility. However, we believe that when it does reverse a decision on such a basis, it should be evident from the record how the commission resolved the credibility issue consistent with the deputy's observations. When the deputy commissioner's finding of credibility is based, in whole or in part, upon the claimant's appearance and demeanor at the hearing, the commission may have difficulty reversing that finding without recalling the witness. On the other hand, if the deputy commissioner's determination of credibility is based on the substance of the testimony and not upon the witness' demeanor and appearance, such a finding is as determinable by the full commission as by the deputy.

Id. at 383, 363 S.E.2d at 438.

At the compensation hearing, claimant testified that while delivering doughnuts "he over shot the office door, turned, twisted and felt a pop in his left hip." The two accident reports at issue provide different versions of how the accident occurred. In addition, the medical evidence submitted also varied from claimant's description of his injury.

The deputy commissioner found the accounts of claimant's injury both consistent and inconsistent with the testimony given at the hearing. However, the deputy commissioner found credible the claimant's representation that his heavily medicated condition affected his ability to communicate how the injury occurred. Relying on the claimant's candor, the deputy commissioner determined that claimant's injury was compensable as an injury by accident notwithstanding the multiple inconsistencies in the record.

The full commission reversed the finding of the deputy commissioner, and based its decision on inconsistencies apparent from the record. The commission disagreed with the deputy commissioner's finding regarding claimant's candor and credibility and, in fact, determined that the record revealed that claimant had been evasive in responding to questions about his injury. The commission noted that even if it were to accept the deputy commissioner's findings concerning claimant's candor, claimant still failed to prove a compensable injury by accident.

As required by Goodyear, id. at 383, 363 S.E.2d at 438, the commission indicated on the record why they disagreed with the finding of the deputy. First, noting the Employer's First Report of Accident, the commission found that claimant had failed to relate how the injury occurred other than reporting he was walking into an office building with doughnuts when he suddenly experienced pain. The first doctor's report stated that claimant felt pain in his left buttock and leg while lifting a box. A second doctor's report recounted the injury as arising while "bending-lifting." While under the care of Dr. Pournaras, claimant explained that while unloading bakery goods, he twisted and developed severe pain in his buttocks. Claimant's statement to his physical therapist recounts that he was in a forward flexed position lifting boxes when he felt the sharp pain in his buttock. Finally, while claimant's account of the injury in the recorded statement was consistent with his account in the Employee's Report, the commission found that claimant's testimony at the hearing varied from the accounts given in both of these reports. There was no evidence that claimant was "heavily medicated" at the time these conflicting accounts were given.

As noted above, the commission resolved the inconsistencies in the record against the claimant due to his inability to explain why his testimony at the hearing was never mentioned in earlier reports. The commission's findings are supported by credible evidence and must be upheld. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

Accordingly, we affirm.

Affirmed.