Credibility

Credibility determinations are within the fact finder's exclusive purview. Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374,381, 363 S.E.2d 433, 437 (1987).

"If the deputy commissioner's determination of credibility is based on 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 (1992).

The full Commission is not bound by a deputy commissioner's credibility determination. As the Court of Appeals noted in Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 729, 418 S.E.2d 904, 907 (1992), the record does not contain a "specific recorded observation" concerning any witness' demeanor or appearance related to a credibility determination. The deputy commissioner merely concluded from the evidence before him that claimant failed to meet his burden of proof. "Absent a specific, recorded observation regarding the behavior, demeanor or appearance of [the witnesses], the commission had no duty to explain its reasons for . . . [accepting claimant's version of events.]" Id. Tidewater Mechanical Contractors, Inc. v. Douglas Thomas, Record No. 0368-99-1 (June 15, 1999). WP Version.

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 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), 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. 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. The commission also did not err in making the claimant’s deposition part of the record and then admitting the claimant’s deposition for impeachment and rebuttal purposes only rather than as substantive evidence. Assuming, without deciding, that the deputy commissioner erred in failing to admit the deposition as substantive evidence, such error was harmless. Allied Signal, Inc. v. Karin A. Persinger, Record No. 1505-99-2 (November 16, 1999). WP Version.