Goodyear Tire & Rubber Co. v. Pierce

• Decision Date: 19 September 1989
• Docket Number: No. 0823-88-3,0823-88-3
• Citation: 384 S.E.2d 333,9 Va.App. 120
• Court: Virginia Court of Appeals
• Parties: GOODYEAR TIRE & RUBBER COMPANY, et al. v. Jackie PIERCE. Record

Page 333

384 S.E.2d 333

9 Va.App. 120

GOODYEAR TIRE & RUBBER COMPANY, et al. v. Jackie PIERCE.

Record No. 0823-88-3.

Court of Appeals of Virginia.

Sept. 19, 1989.

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

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

Present: KOONTZ, C.J., and COLE and KEENAN, JJ.

COLE, Judge.

Goodyear Tire & Rubber Company ("Goodyear") appeals an Industrial Commission decision awarding compensation to Jackie Pierce. On appeal, Goodyear presents two issues: (1) whether the commission acted arbitrarily in disregarding the deputy commissioner's credibility determination without offering a sound basis or rationale for its different conclusion; and (2) whether Pierce unjustifiably refused medical attention in selecting his chiropractor as treating physician after Goodyear's offer of panel physicians. We affirm.

This case was originally before the commission on Pierce's application filed November 22, 1985, alleging an industrial accident on October 23, 1985. Goodyear and its insurance carrier, Travelers Indemnity Company, defended upon the grounds that no industrial accident occurred and that Pierce sought unauthorized medical treatment. In his opinion dated May 29, 1986, the deputy commissioner found that the issue in the case could be resolved only after making a determination regarding witness credibility and that in view of Pierce's repeated evasive answers, coupled with his demeanor on the stand, his testimony did not carry the credibility necessary to establish that a compensable accident occurred. He determined that Pierce failed to carry his burden of persuasion and thus denied his claim for benefits. On review, the commission reversed the decision of the deputy without hearing additional evidence.

On appeal, a panel of this court held that if the commission does not follow the deputy commissioner's findings when these findings are based on a determination of a key witness's demeanor or appearance in relation to credibility, the commission must offer a rationale for its reversal and demonstrate on the record how the commission found the evidence credible. Goodyear Tire & Rubber Co. v. Pierce, 5 Va.App 374, 363 S.E.2d 433 (1987). The panel remanded the case to the full commission to reconsider the case in accord with the views expressed in the opinion. The commission, pursuant to the remand, issued a new opinion dated June 3, 1988.

In its June 3, 1988, opinion, in response to the remand, the commission explained the rationale of their decision. They again reversed the decision of the deputy commissioner and awarded Pierce benefits. This appeal followed.

THE CREDIBILITY QUESTION

In Williams v. Auto Brokers, 6 Va.App. 570, 370 S.E.2d 321 (1988), we elaborated upon Pierce, holding that Code § 65.1-98 authorizes the commission to reverse a deputy commissioner's factual findings, "including a credibility determination based on behavior, appearance and demeanor, when it articulates a basis for its different conclusion that is supported by credible evidence in the record." Id. at 575, 370 S.E.2d at 324. Goodyear asserts that the commission's June 3, 1988, opinion is "crafted in tailor-made fashion, circumvents the directive handed down by this court," and "is still devoid of any rationale which would overcome, in this circumstance, the observations of the hearing officer who specifically noticed Pierce's demeanor."

In his May 29, 1986, opinion, the deputy commissioner commented upon Pierce's testimony. He opined that the issue was the presence or absence of an accident meeting the mandate of Code § 65.1-7 and stated that its resolution "revolves on the basis of witness credibility." He specifically referred to a statement signed by Pierce on a hospital pass on the date of the occurrence where he did not report any internal back problem but said he "reached down to get another and felt a pain." The deputy commissioner further stated that there was no indication on the hospital pass that the claimant "had even touched another drum or another part of the equipment or was in the act of lifting anything at the time of this event."

In addition, the deputy commissioner's opinion, without referring to any specific portions of the record or testimony of Pierce, contains this statement which has been the focal point of much of the controversy in this case:

In the case at bar this plaintiff was, during the course of his cross-examination, 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. The plaintiff accomplished this by his argumentative answers to such questions 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.

On direct examination, Pierce testified that he sustained the injury on October 23, 1985, in the following manner:

I had completed the tire, broke the drum down and took the--removed the tire off the drum, and I was putting the drum back together, the outside section, you have a outside section too, they're light. O.K., I put them on, I bent down, reached and got the middle section, that's the heaviest part of the drum cause weights is in it. You have to have that to balance the drum when it's spinning on air. So, when I came up with the drum, a sharp pain hit me in the lower part of my back and I dropped the section. Well, I didn't have no choice but to drop it, because I mean I was hurting, and I called the supervisor.

According to the testimony of Pierce, his supervisor came to his machine, ascertained what happened, and filled out a medical department hospital pass to permit him to see the plant nurse. The plant hospital pass contains the following description of the injury alleged to have occurred at the time: "Lower central back hurt--picked up section and applied to drum. Reached down to get another and felt a pain." Pierce signed the pass in a blank space under a heading of date/time of examination. He claims that the description of the injury was not written on the pass when he signed it. The deputy commissioner concluded that the discrepancy in Pierce's versions of the accident reflected adversely on his credibility.

The commission looked at this evidence in a different light. In its June 3, 1988, decision, the commission explained its rationale. It found that the deputy commissioner placed inappropriate emphasis upon the second portion of the statement contained in the hospital pass without considering the entire statement and Pierce's testimony. It pointed out that the first part of the hospital pass statement made it clear that Pierce had lifted a section of a tire mold weighing some fifty-five to sixty pounds. Commissioner O'Neill, in a concurring opinion, expressed the view that the hospital pass was not a medical report but an authorization that would permit Pierce to leave his work site and get to the dispensary. Further, the plain language of the pass shows that the information sought in the blank space was a description of the injury or illness, not a description of how the accident or illness occurred. The short note written by the supervisor more than filled up the small space allotted for that purpose.

The commission also disagreed with the finding of the deputy commissioner that during cross-examination Pierce was evasive and gave the clear appearance of intentionally trying to avoid giving a direct answer to uncomplicated questions. The commission concluded that, while Pierce may have been confused from time to time in his answers to questions, his testimony was corroborated by the medical reports. It further opined that, although they could not determine from the record Pierce's demeanor on the stand, the answers themselves did not support the deputy commissioner's finding that Pierce was evasive and argumentative. Commissioner O'Neill, in his concurring opinion, stated:

Only in the vigorous cross-examination by employer's counsel do we see that the claimant's testimony might give rise to the interpretation by the deputy commissioner that the claimant's answers are evasive. I do not consider them to be evasive. The claimant was specific and informative in direct examination. Upon cross-examination the method of the examiner involved not only questions but also numerous direct statements which were offered as facts to be accepted or denied by the claimant. The nature of those direct statements, which the claimant clearly attempted to deny, brought forth efforts by the claimant to make statements of his own and to give what he characterized as truthful answers. His efforts were pronounced and they met with obvious frustration upon interruption by the cross-examiner. This transcript exhibits a closely-examined, frustrated witness with limited language skills confronted by an experienced and skilled attorney. I view the result not as conduct suggesting a failure of the claimant's credibility, but rather, as an example of the adversary system in operation.

Therefore, when the Deputy Commissioner described the claimant's appearance as "intentionally trying to avoid giving a direct response to an uncomplicated question," I find that the claimant clearly disagreed with many statements as posed by the cross-examiner and that he attempted to give what he considered to be truthful answers rather than relying upon words supplied by the cross-examiner. I believe the witness's credibility to have been strengthened and enhanced by his repeated statements indicating he desired to have truthful evidence in the record rather than assents or dissents to statements with which he did not agree.

In support of its position,...