Goodyear Tire & Rubber Co. v. Pierce, 1053-86-3

• Decision Date: 15 December 1987
• Docket Number: No. 1053-86-3,1053-86-3
• Court: Virginia Court of Appeals
• Parties: GOODYEAR TIRE & RUBBER COMPANY, and Travelers Indemnity Company v. Jackie PIERCE.

Page 433

363 S.E.2d 433

5 Va.App. 374

GOODYEAR TIRE & RUBBER COMPANY, and Travelers Indemnity Company v. Jackie PIERCE.

No. 1053-86-3.

Court of Appeals of Virginia.

Dec. 15, 1987.

James A.L. Daniel (Martha White Medley, Meade, Tate & Daniel, P.C., Danville, on brief), for appellants.

D. Thomas Blair (Stephen G. Bass, Carter, Craig & Bass, P.C., Danville, on brief), for appellee.

Panel: KOONTZ, C.J., and KEENAN and MOON, JJ.

MOON, Judge.

Goodyear Tire & Rubber Company (Goodyear) appeals an Industrial Commission award of temporary total disability benefits to Jackie Pierce, alleging that the award is not supported by credible evidence. Goodyear contends that Pierce: (1) failed to prove that he sustained a compensable injury arising out of his employment; and (2) was not justified in seeking medical treatment from a chiropractor who was not on Goodyear's panel of authorized physicians. The deputy commissioner found that due to Pierce's argumentative and evasive nature at the hearing he was not a credible witness. Hence, the deputy commissioner denied Pierce's claim because Pierce did not prove that he suffered a compensable injury. The full commission reversed without hearing the parties or any additional evidence, and stated merely that the deputy commissioner's finding that claimant was not a credible witness "is not supported by the record."

Although we do not agree with Goodyear's contention that a deputy commissioner's determination of a witness' credibility is binding, as a matter of law, upon the full commission, we believe the finding may not be arbitrarily disregarded unless it is evident from the record that there existed some basis for the commission's different interpretation of the witnesses' credibility. However, because the full commission did not prepare an adequate "statement of the findings of fact, rulings of law and other matters pertinent to the questions at issue," Code § 65.1-97, we are unable to determine what specific facts the commission relied upon in finding that Pierce sustained a compensable injury or that he was refused a panel of physicians. Therefore, we remand the case to the full commission for specific findings of fact, as opposed to a mere recitation of the evidence.

I. The Evidence

The Industrial Commission's duty was to determine if Pierce proved by a preponderance of the evidence that he sustained a compensable injury and also if the evidence established that Goodyear informed him about a panel of authorized treating physicians. If the commission could not determine how the accident happened, it necessarily had to deny benefits to Pierce because he had the burden of proof on that issue. Winegar v. International Telephone & Telegraph, 1 Va.App. 260, 261, 337 S.E.2d 760, 760 (1985). On the other hand, if the commission found that Pierce suffered a compensable injury and that Goodyear did not offer Pierce a panel of physicians, then it would have had to order Goodyear to pay for a treating physician of Pierce's own choosing. See Davis v. Brown & Williamson Tobacco Co., 3 Va.App. 123, 126, 348 S.E.2d 420, 421 (1986).

Conflicting testimony was presented in almost every aspect of this case. At the hearing, Pierce, a "tire builder" for Goodyear, testified that while working on October 23, 1985, he attempted to pick up a heavy tire component as he knelt over and immediately felt a sharp pain in his back, causing him to drop the part. Under these circumstances, Pierce's testimony established that he suffered a compensable injury. See Russell Loungewear v. Gray, 2 Va.App. 90, 341 S.E.2d 824 (1986). This testimony, however, apparently contradicted Pierce's first report and Goodyear's first recorded report of the accident, which Pierce signed the same day of the injury. The reports indicated that while working with the tires, Pierce bent over without lifting anything and felt a pain in his back. The hospital pass issued to Pierce contained a description of the accident recorded by his foreman and signed by Pierce: "Lower central back hurt--picked up section and applied to drum. Reached down to get another and felt a pain." If the injury occurred in the manner described in these reports, arguably a compensable injury was not established. See Richmond Memorial Hospital v. Crane, 222 Va. 283, 278 S.E.2d 877 (1981); Memorial Hospital v. Hairston, 2 Va.App. 677, 347 S.E.2d 527 (1986). However, Pierce denied that the hospital pass contained the last sentence of the quoted language when he signed it.

Frances Ann Helms, a registered nursed employed by Goodyear, who first saw Pierce at the plant hospital, also contradicted Pierce's version of the accident. Helms testified in her deposition that Pierce, on the day of the alleged injury, claimed that when he "reached down," he "caught a sharp pain in the low or lower lumbar." She further testified that Pierce later returned to regular work that same day. Pierce also denied making these statements to Helms.

On October 28, 1985, Pierce returned to the plant hospital and asked to see a doctor because he was experiencing continued back pain. Helms sent Pierce by taxi to the company physician, Dr. Drake Pritchett, who gave Pierce an injection of Decadron and a prescription. Pierce returned to regular work the next day, October 29, 1985, but returned to Nurse Helms and requested to see Dr. Pritchett again. Because the doctor's office was closed at that hour, Helms gave Pierce a pass to go home. On October 31, 1985, Pierce telephoned Marion Abbott, head nurse at the employer's plant hospital, and advised her that "he had gone to see a chiropractor on his own," and that the chiropractor, Dr. Stephen Saunders, was keeping him out of work effective October 30, 1985, through November 4, 1985. In her deposition, Nurse Abbott testified that she did not authorize treatment by Saunders. Pierce's only explanation for seeking the treatment by a chiropractor was that he had simply gone to see Dr. Saunders "on his own."

On November 8, 1985, Pierce returned to the Goodyear plant and told Abbott that he wanted to choose Dr. Saunders, his chiropractor, as his physician. She testified that she advised Pierce to see either an orthopedist, a neurologist, or a neurosurgeon and she explained to Pierce that Goodyear had a panel of physicians who treated employees in workers' compensation matters. She offered to make Pierce an appointment with any doctor listed on the panel. Abbott also testified that the list of authorized physicians was posted in the company hospital and throughout the plant. However, she testified that Pierce would not permit her to make such an appointment, stating that he wished to have Dr. Saunders as his physician.

Pierce denied almost every aspect of Abbott's testimony and claimed he had never heard that Goodyear had a panel of physicians. However, he conceded on cross examination that Abbott was a nice person and stated: "She tells me things that I don't know.... She said, 'that Goodyear have doctors.... Several doctors other than Dr. Pritchett.' "

On January 13, 1986, Pierce again saw Abbott and, for a reason not explained in the record, insisted that she note in his file that he hurt himself again as he "was taking a section out of the drum and felt a sharp pain on bending." She further stated: "He said this was the same area that he had hurt himself before, the same injury. He did not want any treatment, he did not want anything except for me to put it on his record. He was very insistent that this be placed on his record."

Abbott also testified that a year previous to this incident, on May 30, 1984, Pierce came into the office to report a back strain he suffered in April, 1984. Pierce also denied he strained his back at that time.

Pierce filed for disability benefits for the periods October 30, 1985, to November 20, 1985, and January 14, 1986, to February 28, 1986. Pierce testified before the deputy commissioner in a hearing of March 20, 1986. The deputy commissioner, in denying Pierce's claim for benefits, stated:

[Pierce was] repeatedly evasive in his answers to the extent that he gave the clear appearance of intentionally trying to avoid giving a direct response to an uncomplicated question. [Pierce] ... accomplished this by his argumentative answers to such question by defense counsel. This evasiveness which was clearly apparent to this Hearing Commissioner, coupled with the inconsistent testimony of the plaintiff as contrasted to his signed statement on the hospital pass ... raises a substantial question as to the credibility of this plaintiff. In view of the repeated evasive answers of this plaintiff coupled with his demeanor on the stand, we find that his testimony does not carry the credibility necessary to establish that the event he testified to under oath is the event which actually occurred.

In reversing the denial of compensation, the full commission stated: "The claimant's testimony appears to be credible and is corroborated by the medical reports. The Deputy Commissioner's finding that the claimant was repeatedly evasive and argumentative in his answers is not supported by the record and we so find." The full commission, with one dissent, also found that a medical panel was not offered to Pierce and ordered Goodyear to pay for the services of Dr. Saunders, the chiropractor.

II. The Credibility Issue

Goodyear's primary argument is that once the issue of a witness' credibility has been decided by the deputy commissioner hearing the case ore tenus, this finding binds the full commission.

Code § 65.1-98 provides that, on appeal, the award of the commission "shall be conclusive and binding as to all questions of fact." Where the findings of fact of the Industrial Commission are based upon credible evidence, such findings will be sustained on appeal. Fairfax Hospital v. DeLaFleur, 221 Va. 406, 410, 270 S.E.2d 720, 722 (1980). Conversely, where there is no credible evidence to support the findings, the...