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WASHINGTON GAS LIGHT COMPANY v. THOMPSON




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WASHINGTON GAS LIGHT COMPANY

v.

THOMPSON


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Overton

Record No. 1618-03-4

WASHINGTON GAS LIGHT COMPANY

v.

NADINE THOMPSON

 

MEMORANDUM OPINION[1]
PER CURIAM

OCTOBER 14, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Robert B. Evans, on briefs), for appellant.

(Manuel R. Geraldo; Robinson & Geraldo, on brief), for
appellee.

Washington Gas Light Company (employer) contends that the
Workers’ Compensation

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.[2]

I.

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
the

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.
A

specific recorded observation of a key witness’s demeanor or

appearance in relation to credibility is an aspect of the
hearing that

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
commissioner’s

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
merit.

II.

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
merit.

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
supervisor, Michael

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.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]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.

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