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the Virginia Court of Appeals.
WASHINGTON GAS LIGHT COMPANY
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
Record No. 1618-03-4
WASHINGTON GAS LIGHT COMPANY
OCTOBER 14, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Robert B. Evans, on briefs), for appellant.
(Manuel R. Geraldo; Robinson & Geraldo, on brief), for
Washington Gas Light Company (employer) contends that the
Commission (1) arbitrarily disregarded the deputy commissioner’s
admonishments to Nadine
Thompson concerning her credibility; (2) failed to articulate a
basis for reversing the deputy
commissioner’s credibility determination; and (3) ignored the
expert opinion of Dennis L. Hart
that Thompson’s job tasks did not involve ergonomic stressors
and that no data supported an
association between her multiple complaints and specific job
tasks. Upon reviewing the record
and the parties’ briefs, we conclude that this appeal is without
merit. Accordingly, we summarily
affirm the commission’s decision. Rule 5A:27.
The deputy commissioner’s August 20, 2002 opinion does not
contain any specific
recorded observations regarding Thompson’s credibility.
When the full commission reviews a deputy
commissioner’s findings of credibility, it must first consider
basis of those findings. If 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.
specific recorded observation of a key witness’s demeanor or
appearance in relation to credibility is an aspect of the
the commission may not arbitrarily disregard. However, if the
deputy commissioner’s determination of credibility is based upon
the substance of the testimony rather than upon the witness’s
demeanor, such a finding is as determinable by the full
commission as by the deputy.
Kroger Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879,
880-81 (1992) (citations omitted).
Employer cites no authority for its contention that the deputy
admonishments to Thompson during the hearing regarding the
manner in which she was
responding to questions constituted an explicit credibility
determination that could not be
arbitrarily reversed by the commission. The argument lacks
The commission’s opinion contains a lengthy recitation of Dr.
Hart’s findings and
opinions. Thus, the record permits the reasonable inference that
the commission considered that
evidence in rendering its decision. Accordingly, we hold that
employer’s argument that the
commission arbitrarily ignored Dr. Hart’s expert testimony lacks
As fact finder, the commission was entitled to believe
Thompson’s testimony, to accept as
persuasive the opinions of Drs. Joseph Liberman and Rida N.
Azer, and to give little probative
weight to Dr. Hart’s findings. The testimony of Thompson and her
O’Malley, and the opinions of Drs. Liberman and Azer constitute
credible evidence to support
the commission’s decision.
For these reasons, we affirm the commission’s decision.
Code ? 17.1-413, this opinion is not designated for publication.
The issues set
forth above constitute the "Questions Presented" by employer in its
opening brief for consideration by this Court. Any additional
issues or arguments raised in the
appellee’s brief or in employer’s reply brief that do not
specifically address the questions
presented by employer in its opening brief are not relevant to
this appeal and will not be
addressed by this Court.