                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, McClanahan and Senior Judge Willis


ANTHONY PETRAITIS
                                                                 MEMORANDUM OPINION *
v.     Record No. 1763-07-2                                          PER CURIAM
                                                                   DECEMBER 4, 2007
PREVENT BLINDNESS AMERICA AND
 ST. PAUL FIRE & MARINE INSURANCE COMPANY


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 (William F. Karn, on brief), for appellant.

                 (Patsy L. Mundy; Law Office of Mark J. Beachy, on brief), for
                 appellees.


       Anthony Petraitis (claimant) appeals from a decision of the Workers’ Compensation

Commission finding that he failed to prove he sustained an injury by accident arising out of and

in the course of his employment on March 7, 2005. Claimant contends the commission applied

an incorrect standard of review when reviewing the deputy commissioner’s credibility

determinations. Claimant argues the commission erred in deferring to and relying upon the

deputy commissioner’s credibility determinations, rather than applying a de novo standard of

review. We disagree.

                 [A] specific, recorded observation of a key witness’ demeanor or
                 appearance in relation to credibility is an aspect of the hearing that
                 the commission may not arbitrarily disregard. When the
                 commission does not follow such a finding, the record should
                 indicate that the commission did not arbitrarily ignore the finding.
                 We do not, however, hold that the deputy commissioner’s findings
                 as to credibility necessarily bind the commission. Code § 65.1-96
                 [now Code § 65.2-704] provides that the initial hearing may be by
                 the commission or any of its members or deputies, who “shall

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               decide the issues in a summary manner, and shall make an award
               carrying out the decision.” In addition, Code § 65.1-97 [now Code
               § 65.2-705] provides that upon an application for review of an
               award, if the first hearing was not held before the full commission,
               the full commission:

                      shall review the evidence or, if deemed advisable,
                      as soon as practicable, hear the parties at issue,
                      their representatives and witnesses and shall make
                      an award which, together with a statement of the
                      finding of fact, rulings of law and other matters
                      pertinent to the questions at issue, shall be filed with
                      the record of the proceedings.

               (emphasis added). Therefore, the commission has the authority to
               hear the case de novo. If the commission hears the case de novo it
               will not be bound by the findings of the deputy. But when the full
               commission does not hear the witness’ testimony, the deputy’s
               observations about witness credibility become a part of the
               evidence which the commission may not arbitrarily ignore and
               dismiss.

Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 382-83, 363 S.E.2d 433, 437-38 (1987).

       Here, the commission reviewed and summarized the relevant testimony and medical

records. It then noted the deputy commissioner’s findings, including his credibility

determinations. The commission implicitly recognized that those findings were based upon the

substance of the witnesses’ testimony and the medical records considered by the deputy

commissioner and the inconsistencies therein, and then, as it was entitled to do where it did not

hear the case de novo, deferred to those findings and affirmed the deputy commissioner’s

decision.

       Finding no error in that decision, we conclude this appeal is without merit. Accordingly,

we affirm for the reasons stated by the commission in its final opinion. See Petraitis v. Prevent

Blindness America, VWC File No. 223-08-79 (June 20, 2007). 1 We dispense with oral



       1
         Subsequent to its June 20, 2007 opinion, the commission denied claimant’s motion to
vacate that opinion and motion for oral argument, and adhered to its previous opinion.

                                            - 2-
argument and summarily affirm because the facts and legal contentions are adequately presented

in the materials before the Court and argument would not aid the decisional process. See Code

§ 17.1-403; Rule 5A:27.

                                                                                     Affirmed.




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