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EVIDENCE AND DISCOVERY
See Burden of Proof
To receive benefits, claimant had to establish her claim by a preponderance of the evidence. Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 92, 493 S.E.2d 384, 387 (1997).
Proffer facilitates appellate review of an exclusion of testimony. "[W]hen testimony is rejected before it is delivered, an appellate court has no basis for adjudication unless the record reflects a proper proffer." Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977) (citation omitted). "[I]t is incumbent upon the proponent of the evidence to make a proffer of the expected answer." Speller v. Commonwealth, 2 Va. App. 437, 440, 345 S.E.2d 542, 545 (1986). Without a proffer, "[a court is] precluded from a consideration of this issue on appeal." Mostyn v. Commonwealth, 14 Va. App. 920, 924, 420 S.E.2d 519, 521(1992). The rule is the same for administrative proceedings. "When a deputy commissioner refuses to admit evidence . . . 'the party must proffer or avouch the evidence for the record.'" Daniel Constr. Co. v. Tolley, 24 Va. App. 70, 79, 480 S.E.2d 145,149 (1997) (quoting Smith v. Hylton, 14 Va. App. 354, 357, 416 S.E.2d 712, 715 (1992)). "[O]therwise, the appellate court has no basis to decide whether the party was prejudiced by the deputy commissioner's error." Daniel Constr. Co., 24 Va. App. at 79,480 S.E.2d at 149 (citation omitted).
The party seeking to reopen the record on the basis of after-discovered evidence, bears the burden of proving that "(1) the evidence was obtained after the hearing; (2) it could not have been obtained prior to hearing through the exercise of reasonable diligence; (3) it is not merely cumulative, corroborative or collateral; and (4) it is material and should produce an opposite result before the commission." Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883 (1995). If after-discovered evidence could have been obtained through the exercise of due diligence prior to the hearing, or at the very least, a request could have been made to leave the record open for its admission, the commission did not err in failing to consider such evidence. See Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 614, 401 S.E.2d 200, 207 (1991).
Credibility Determinations. "[W]hen the deputy commissioner makes an explicit finding of credibility based upon a witness' demeanor or appearance at the hearing, the commission may reverse that factual finding when it articulates a basis for its different conclusion that is supported by credible evidence." Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 728, 418 S.E.2d 904, 907 (1992).
Credibility Determinations. The commission is not bound by a deputy commissioner's credibility determination. As the court 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.
Credibility Determinations. 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.
The dead man's statute, Sec. 8.01-397, is an evidentiary rule inapplicable to Commission hearings. Armada, Inc. v. Lucas, 2 Va. App. 414, 345 S.E.2d 14 (1986).
The testimony of a claimant may also be considered in determining causation, especially where the medical testimony is inconclusive. See Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 281, 348 S.E.2d 876, 878 (1986); Dollar General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996). A claimant's testimony need not be corroborated, but must be credible and in accord with normal events. Walsh Construction Co. v. London, 195 Va. 810, 80 S.E.2d 574 (1954).
Medical Histories. In McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995), the Court of Appeals held that under common law rules of evidence, medical histories are admissible substantively as party admissions. Thereafter, the Court of Appeals recognized in Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456 S.E.2d 541 (1995), that, under Rule 2.2 of the Rules of the Workers' Compensation Commission, the commission may consider medical histories in determining how an accident occurred. Rule 2.2 gives the commission "'[t]he discretion to give probative weight to hearsay statements in arriving at its findings of fact.'" Oliver, 20 Va. App. at 319, 456 S.E.2d at 544 (quoting Williams v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958)). Bobby Morton v. Servicemaster Consumer Service, Record No. 2326-98-2 (May 4, 1999). WP Version.
Parol Evidence. Where a written instrument is clear and explicit and can be interpreted based on the ordinary meaning of the language used, the parties' intent is clear and cannot be altered through parol evidence. Nelson v. Commonwealth, 235 Va. 228, 246, 368 S.E.2d 239, 249 (1988); Amos v. Coffey, 228 Va. 88, 92, 320 S.E.2d 335, 337 (1984). Because the language of the settlement was clear, it was error for the commission to use parol evidence to interpret the parties' intent. For these reasons, the commission's decision is reversed. David Michael Tomlin v. Vance International, Inc., Record No. 2475-95-2, 22 Va. App. 448, 470 S.E.2d 599 (1996).
Proffer. Where a party alleges error based on the exclusion of evidence, it must make a proffer of proof for the court to determine if he has been prejudiced. See City of Richmond Police Dep't v. Bass, 26 Va. App. 121, 130, 493 S.E.2d 661, 665 (1997) ("Proffer facilitates appellate review of an exclusion of testimony."). Absent a proper proffer, the Court of Appeals is precluded from considering this issue. A. D. Stowe v. Otis Wayne Ricks, Record No. 2704-98-1 (April 27, 1999). WP Version.
A Deputy Commissioner, in an exercise of his or her discretion, may exclude a witness when a party fails to answer interrogatories or identify the witness in interrogatory answers. However, one would assume that a party would potentially testify even if he is not formally designated as a witness. The Hearing was on the claimant's claim, and he had the burden of proof. Also, the record does not reflect that employer's counsel offered any evidence of prejudice. In light of Rule 2.2, the fact that claimant bore the burden of proof, and employer's failure to show any evidence of genuine surprise or prejudice, the commission did not abuse its discretion in allowing claimant to testify although not designated as a witness in answers to interrogatories. Billy Norton/Norton's Marina, Inc., v. Gill, Record No. 0579-99-2 (July 20, 1999). WP Version.
Discovery. The Workers' Compensation Commission did not err in dismissing his pending claims without prejudice due to his failure to comply with a discovery order. The record established that the claimant intentionally thwarted the deposition proceedings in order to gain an advantage, defying the specific warning of the Deputy Commissioner that this very dismissal sanction would be imposed. A claimant cannot simply ignore with impunity the lawful orders of a hearing officer, especially where the hearing officer warns that the claims would be dismissed for noncompliance. The commission has the authority to adopt rules to carry out the provisions of the Workers' Compensation Act. See Code Sec. 65.2-201(A). Rule 1.8(G) of the Rules of the Virginia Workers' Compensation Commission allows a party to take the deposition testimony of any person, including another party, after a claim or application has been filed. That rule provides that "[d]epositions shall be taken in accordance with the requirements and limitations of the Rules of the Supreme Court of Virginia . . . ." Rule 4:5(a1) of the Rules of the Supreme Court of Virginia, provides that "[d]epositions shall be taken in the county or city in which the suit is pending . . . ." "The commission has the same authority as a court to punish for noncompliance with its discovery orders." Jeff Coal, Inc. v. Phillips, 16 Va. App. 271, 278, 430 S.E.2d 712, 717 (1993). See also Code Sec. 65.2-202. In addition to its statutory authority to impose sanctions, the commission's rules authorize the commission to impose certain sanctions, including dismissal of a claim or application. See Rule 1.12, Rules of the Virginia Workers' Compensation Commission. Thus, the commission has the authority to impose the sanction of dismissal in appropriate cases. The decision to sanction a party for disobedience to an order is committed to the commission's discretion. See Jeff Coal, 16 Va. App. at 277, 430 S.E.2d at 716. The record clearly establishes that without justification, claimant failed to attend his April 10, 1998 deposition in Richmond as ordered by the commission. The record belies claimant's contention that he was not given timely notice of the deposition or that the commission failed to timely and properly notify him of its intention to dismiss all of his claims if he failed to attend the April 10, 1998 deposition. Ronald W. Craft v. Commercial Courier Express, Record No. 1517-99-2 (December 7, 1999). WP Version.
Rule 2.2 of the Rules of the Virginia Workers' Compensation Commission provides that "[e]xcept for rules which the Commission promulgates, it is not bound by statutory or common law rules of pleading or evidence nor by technical rules of practice." Based upon this rule and the lack of any evidence of prejudice to employer, the commission did not err in not allowing employer to call claimant's wife as a witness to testify regarding a calendar she kept of the days claimant worked, where record was fully developed regarding the earnings, claimant did not offer the calendar into evidence, and it does not appear that the calendar would have supplied anything more than cumulative information. Billy Norton/Norton's Marina, Inc., v. Gill, Record No. 0579-99-2 (July 20, 1999). WP Version.
Stipulations. Parties are bound by their stipulations. See Barrick v. Board of Supervisors of Mathews County, 239 Va. 628, 631, 391 S.E.2d 318, 320 (1990).
In light of the inconsistencies between claimant's testimony and his prior statements, his medical records, and the accident report, the Commission was entitled to reject his account at hearing of an identifiable incident of lifting. Bobby Morton v. Servicemaster Consumer Service, Record No. 2326-98-2 (May 4, 1999). WP Version.
After-Discovered Evidence. The party seeking to reopen the record on the basis of after-discovered evidence, must prove that "(1) the evidence was obtained after the hearing; (2) it could not have been obtained prior to hearing through the exercise of reasonable diligence; (3) it is not merely cumulative, corroborative or collateral; and (4) it is material and should produce an opposite result before the commission." Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883 (1995).
As the party seeking to reopen the record on the basis of after-discovered evidence, claimant bore the burden of proving that "(1) the evidence was obtained after the hearing; (2) it could not have been obtained prior to the hearing through the exercise of reasonable diligence; (3) it is not merely cumulative, corroborative or collateral; and (4) it is material and should produce an opposite result before the commission." Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883 (1995). Claimant who was represented by counsel would not be unduly surprised that his driving record may be relevant to a claim originating from a motor vehicle accident. Moreover, this evidence existed and was readily obtainable prior to the Hearing. The failure to obtain testimony and records that were available and known does not satisfy the diligence requirement. The DMV report and the witness testimony were not of such crucial character and this evidence could have been obtained prior to the record closing through the exercise of reasonable diligence. Claimant had ample opportunity to obtain the DMV report and the witnesses' testimony before the hearing, but failed to do so. Because claimant did not satisfy the second prong of the Williams test, the commission did not err in denying his request for a rehearing to introduce after-discovered evidence. Patrick Frank Bryan v. Highway Carriers, Record No. 1800-98-2 (October 19, 1999). WP Version.
Timely objection must be raised to defense not identified in discovery. Claimant waived any objection regarding employer's answers to interrogatories and notification of the deviation from employment defense, by failing to object at the hearing when the deputy commissioner recited employer's defenses, including the deviation defense. At the hearing, claimant, who was represented by counsel, did not claim to be surprised and did not move to strike the defense. Patrick Frank Bryan v. Highway Carriers, Record No. 1800-98-2 (October 19, 1999). WP Version.
Having found that the appellant could not have prepared her legal arguments herself because of her limited education and her inability to communicate in English, the commission followed its own precedent in choosing to consider the appellant's petition for review, but declining to consider legal arguments prepared on her behalf by a non-attorney. See Smith v. Orange Livestock Market, Inc., 75 O.W.C. 129 (1996); Mullins v. Dale Presley Trucking, VWC No. 149-07-23 (June 29, 1994). When courts construe the adjudicative orders of an administrative agency, courts give deference to that agency's interpretation of the law. See Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260 (1999). The commission has the power to make and enforce rules not inconsistent with the Workers' Compensation Act in order to further that Act's provisions. See Code Sec. 65.2-201(A); Arellano v. Pam E. K's Donuts Shop, 26 Va. App. 478, 482, 495 S.E.2d 519, 521 (1998), cited in Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. at 129 n.2, 510 S.E.2d at 260 n.2. The commission has the power to enforce its own rules. See id. at 482-83, 495 S.E.2d at 521. When the commission interprets its own rules, courts will accord that interpretation great deference and will not set it aside unless arbitrary or capricious. See Specialty Auto Body v. Cook, 14 Va. App. 327, 330, 416 S.E.2d 233, 235 (1992). The commission acted appropriately in refusing to consider the legal arguments prepared for the appellant by her non-lawyer husband. The commission's choice not to strike the offending documents from the record comports with its prior decisions, see Smith, 75 O.W.C. 129; Mullins, VWC No. 149-07-23, and the Court of Appeals therefore deferred to the commission in its adherence to its own rules and precedent. The commission committed no error in not striking the appellant's legal briefs from the record, and it acted appropriately by refusing to consider them in rendering its decision. Maria Emigdia Turpin v. Fairfax County School Bd., Record No. 2933-98-4 (November 2, 1999). WP Version.
Employer’s counsel was guilty of the late filing of a medical report. The deputy commissioner admitted the doctor’s report into evidence but provided claimant with ample opportunity to cross-examine the doctor before the record closed. Claimant elected not to cross-examine the doctor in any manner whatsoever. Having chosen not to take advantage of the opportunity to cross-examine the doctor regarding the medical report, claimant cannot claim that she was prejudiced by the late filing. The commission did not abuse its discretion in admitting into evidence the medical report that had been filed late. The commission also did not err in denying claimant disability benefits after March 31, 1996 and in denying medical benefits for treatment incurred after April 25, 1996. In doing so, the commission relied upon the opinions and medical records of two doctors and rejected the opinions of two other doctors. The medical records and opinions of the two doctors relied upon support the commission’s findings that claimant was not disabled after March 31, 1996 due to the effects of her exposure to Lysol Brand Concentrate at work in February 1996; that the effects of that exposure ended by April 25, 1996; and that her symptoms thereafter were due to pre-existing conditions or other causes. The commission articulated sound reasons for giving little probative weight to the contrary opinions of the two other doctors. “Medical evidence is not necessarily conclusive and is subject to the commission’s consideration and weighing.” Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). “Moreover, “[q]uestions raised by conflicting medical opinions must be decided by the commission.” Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). Joleane Dutzman v. J. Douglas Wooddell, DDS, Record No. 1735-99-4 (November 16, 1999). WP Version.
The commission did not err in finding that (1) the decedent, a cab driver, left the scope of his employment and the protection of the Workers' Compensation Act ("the Act") when he broke employer's rules; and (2) the presumption contained in Southern Motor Lines v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958), was not applicable to this case. A claimant must prove that an injury arose out of and in the course of his employment to qualify for any benefits under the Act. See Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991). An act is within the scope of the employment relationship if "(1) it be something fairly and naturally incident to the business, and (2) if it be done while the servant was engaged upon the master's business and be done, although mistakenly or ill-advisedly, with a view to further the master's interests, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master's business, and did not arise wholly from some external, independent, and personal motive on the part of the servant to do the act upon his own account." Smith v. Landmark Communications, Inc., 246 Va. 149, 151-52, 431 S.E.2d 306, 307-08 (1993) (citations omitted). Employer's written rules required that its cab drivers obey the dispatcher's instructions regarding picking up passengers at a designated location and that they were not permitted to pick up passengers unless assigned by the dispatcher or located at a cab stand. Credible evidence also established that the decedent was made aware of employer's rules before his death. Decedent disregarded his dispatcher's instructions and picked up two passengers who flagged him down. The commission could reasonably conclude that the decedent was not engaged in an activity fairly and naturally incidental to employer's business immediately prior to his death. Rather, the evidence permitted the inference that the decedent broke employer's rules and removed himself from the scope of his employment before his death, regardless of what occurred thereafter. Claimant's evidence did not prove as a matter of law that the decedent was acting in the course of his employment at the time of his death. In Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958), the Supreme Court recognized the following presumption: [W]here an employee is found dead as the result of an accident at his place of work or near-by, where his duties may have called him during the hours of his work, and there is no evidence offered to show what caused the death or to show that he was not engaged in his master's business at the time, the court will indulge the presumption that the relation of master and servant existed at the time of the accident and that it arose out of and in the course of his employment. Id. at 171-72, 104 S.E.2d at 738. However, "[w]here liability is imposed on the employer on presumptive evidence to the effect that the death arose out of the employment, there must be an absence of contrary or conflicting evidence on the point and the circumstances which form the basis of the presumption must be of sufficient strength from which the only rational inference to be drawn is that death arose out of and in the course of the employment." Winegar v. Int'l Telephone & Telegraph, 1 Va. App. 260, 263, 337 S.E.2d 760, 761 (1985) (quoting Hopson v. Hungerford Coal Co., 187 Va. 299, 305, 46 S.E.2d 392, 395 (1948)). In this case, contrary and conflicting evidence existed with respect to the circumstances surrounding the decedent's death. Credible evidence supports the commission's inference that prior to the decedent's death, he left the scope of his employment when he willfully violated employer's rules and went on a frolic of his own. That is, the decedent was not "where his duties . . . called him" at the time of his death, rendering the presumption inapplicable. Here, unlike Alvis, credible evidence supports the rational inference that the decedent's death did not occur in the course of or arise out of his employment. Accordingly, the commission did not err in refusing to apply the Alvis presumption. Karen D. Mallory v. William Tyler, UEF, Record No. 1226-99-2 (January 27, 2000). WP Version.
"Clear and convincing evidence has been defined as 'that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.'" National Fruit Prod. Co. v. Staton, 28 Va. App. 650, 654, 507 S.E.2d 667, 669 (1998). (citations omitted). Great Eastern Resort Corporation v. Gordon, Record No. 1682-99-3 (February 29, 2000). WP Version.
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