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ALLIED SIGNAL, INC., et al. v. PERSINGER



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ALLIED SIGNAL, INC., et
al.

v.

PERSINGER


NOVEMBER 16, 1999

Record No. 1505-99-2

ALLIED SIGNAL, INC. AND TRAVELERS INDEMNITY CO.
OF ILLINOIS

v.

KARIN A. PERSINGER

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

Present: Judges Elder, Bumgardner and Lemons

MEMORANDUM OPINION* PER CURIAM

(S. Vernon Priddy, III; Mary Louise Kramer;
Patsy L. Mundy; Sands, Anderson, Marks & Miller, on brief),
for appellants.

(Ruth E. Nathanson; Maloney, Huennekens, Parks,
Gecker & Parsons, on brief), for appellee.


Allied Signal, Inc. and its insurer
(hereinafter referred to as "employer") contend that
the Workers’ Compensation Commission (commission) erred in (1)
its application of this Court’s holding in Goodyear Tire &
Rubber Co. v. Pierce
, 5 Va. App. 374, 363 S.E.2d 433 (1987), aff’d
after remand
, 9 Va. App. 120, 384 S.E.2d 333 (1989); and (2)
failing to address and reverse the deputy commissioner’s refusal
to admit Karin Persinger’s (claimant) deposition into the record
as substantive evidence. Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission’s decision. See
Rule 5A:27.

I.

Employer singled out one statement contained in
the full commission’s opinion as the basis for its argument on
this issue. That statement read as follows: "[T]he Deputy
Commissioner had the advantage of observing the claimant and is
in a better position to judge credibility. We cannot arbitrarily
disregard her finding." Employer argues that because the
deputy commissioner made no credibility findings based on
appearance or demeanor, the full commission was free to make its
own credibility determination and erred in failing to weigh the
relative credibility of the conflicting witnesses, misapplying
and overstating the rule announced in Goodyear.

The commission’s opinion thoroughly recites the
testimony of the witnesses and the content of the medical
records. The commission recognized that the issue of whether
claimant proved a compensable injury by accident was "highly
factual" and depended largely upon the credibility of the
witnesses. Regardless of the commission’s citation to Goodyear,
its opinion, taken as a whole, unequivocally shows that the
commission weighed the testimony of the witnesses and agreed with
the deputy commissioner’s determination that claimant’s testimony
was credible and consistent with the medical records.

In short, the full commission simply found no
reason to reverse the deputy commissioner’s credibility
determination and did not abuse its discretion by adopting the
deputy commissioner’s findings rather than reversing her
decision. Goodyear prohibits the commission from
arbitrarily disregarding the deputy commissioner’s credibility
determination where it is based upon demeanor or appearance. 5
Va. App. at 382, 363 S.E.2d at 437. However, nothing in Goodyear
prohibits the commission from weighing the evidence and adopting
the deputy commissioner’s credibility determination where it is
based upon the substance of the witnesses’ testimony.

Because the commission’s factual findings are
supported by credible evidence, we will not disturb them on
appeal. See James v. Capitol Steel Constr. Co., 8
Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

II.

At the hearing, the deputy commissioner agreed
to make claimant’s deposition part of the record, stating that
she would rely upon claimant’s live testimony unless something in
the deposition contradicted and impeached her testimony. We find
no merit in employer’s argument that the commission erred in
failing to admit the deposition as substantive evidence.

The deputy commissioner did, in fact, admit the
deposition into the record, albeit for impeachment and rebuttal
purposes. Furthermore, employer has cited to nothing in the
deposition that the deputy commissioner refused to consider and
which would have had any bearing on the issues in this case.
Thus, even assuming, without deciding, that the deputy
commissioner erred in failing to admit the deposition as
substantive evidence, such error was harmless.

For these reasons, we affirm the commission’s
decision.

Affirmed.

* Pursuant to Code Sect. 17.1-413,
recodifying Code Sect. 17-116.010, this opinion is not
designated for publication.

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