Estate of Kiser v. Pulaski Furniture Co., Record No. 3377-02-3.

• Docket Nº: Record No. 3377-02-3.
• Citation: 584 S.E.2d 464, 41 Va. App. 293
• Case Date: August 05, 2003
• Court: Court of Appeals of Virginia

584 S.E.2d 464
41 Va. App. 293

ESTATE OF Leon Abbott KISER and Elizabeth Kiser
v.
PULASKI FURNITURE COMPANY and Reliance Insurance Company in Liquidation

Record No. 3377-02-3.

Court of Appeals of Virginia, Salem.

August 5, 2003.

584 S.E.2d 465

James B. Feinman (James B. Feinman & Associates, on briefs), Lynchburg, for appellants

S. Vernon Priddy III (Sands, Anderson Marks & Miller, on brief), Richmond, for appellees.

Present: BENTON, BUMGARDNER and McCLANAHAN, JJ.

McCLANAHAN, Judge.

The Estate of Leon Abbott Kiser and his widow, Elizabeth Kiser, appeal a decision of the Virginia Workers' Compensation Commission denying their claim for benefits.

584 S.E.2d 466

The claim alleged that Leon Kiser suffered an injury by accident and that complications from the accident resulted in his death. Claimants contend that the commission erred (1) by allowing a hearing on the claim to be "reopened" to accept testimony from a witness discovered post-hearing, without following the requirements for admission of after-discovered evidence as set forth in Williams v. People's Life Ins. Co., 19 Va. App. 530, 452 S.E.2d 881 (1995), and (2) in finding that the testimony of the new witness was not reasonably available before the initial hearing. For the reasons that follow, we affirm the decision of the commission

I. Background

Leon Kiser had worked for Pulaski Furniture Company for eight years when, on March 26, 1999, he allegedly fell backward over a flat, or pallet, located by his workstation and fractured his hip. While convalescing from the hip injury, Kiser developed pneumonia, resulting in his death. Kiser's estate and widow sought death benefits, alleging that Kiser's death was a compensable consequence of the hip injury.

A hearing on the claim was held on June 22, 2000. At the close of the hearing, the deputy commissioner held open the record for thirty to sixty days for additional medical evidence.

On July 7, 2000, employer filed a motion to reconvene the hearing in order to introduce the testimony of Chester Hundley, an alleged eyewitness to the accident. Hundley had informed employer six days after the June hearing that he had witnessed Kiser's fall, but failed to say anything because he did not know that a claim had been filed. Employer asserted that it had attempted to interview all potential witnesses, but because of the large number of workers employed at the facility, it had neither prior knowledge nor reason to believe that Hundley had witnessed Kiser's fall.

Over claimants' objection, the deputy commissioner reconvened the hearing on October 24, 2000, for the limited purpose of taking Hundley's testimony.¹ Hundley testified that he was walking through the plant when he saw Kiser standing near his workstation. He was approximately eight feet away when he saw Kiser fall. He testified that he saw nothing for Kiser to trip on, but that he just leaned left and fell down.

The deputy commissioner, finding Hundley's testimony "quite compelling," held, in an October 25, 2000 opinion, that claimants failed to prove that Kiser sustained an injury by accident arising out of his employment, and denied benefits. Claimants requested review by the full commission, arguing that the after-discovered evidence rule should have been applied.

Upon review, by opinion on March...