                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Petty and Chafin
UNPUBLISHED


              Argued at Lexington, Virginia


              RICHARD YOWELL
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1679-13-3                                  JUDGE ROBERT J. HUMPHREYS
                                                                                   JUNE 3, 2014
              ROYAL IMPORT, INC. AND
               UNINSURED EMPLOYER’S FUND


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Andrew D. Finnicum (James B. Feinman; James B. Feinman &
                               Associates, on brief), for appellant.

                               Thomas H. Miller (Audra M. Marcum; Dennis P. Brumberg; Frankl
                               Miller & Webb, LLP; Brumberg Mackey & Wall, P.L.C., on brief),
                               for appellee Royal Import, Inc.

                               Nathaniel D. Moore (Penn, Stuart & Eskridge, on brief), for appellee
                               Uninsured Employer’s Fund.


                     Richard Yowell (“Yowell” or “claimant”) appeals the denial of his claim by the Virginia

              Workers’ Compensation Commission (the “commission”). Yowell asserts five assignments of

              error as the basis for his appeal: (1) the commission erred in arbitrarily dismissing the deputy

              commissioner’s determination of credibility concerning William Rudisill (“Rudisill”); (2) the

              commission erred in arbitrarily dismissing the deputy commissioner’s determination of

              credibility concerning Yowell; (3) the commission erred in arbitrarily dismissing the deputy

              commissioner’s determination of incredibility concerning Joseph Melki (“Melki”) and Jacob

              Mahgerefteh (“Mahgerefteh”); (4) the commission erred in failing to give proper deference to the

              opinions of the treating physicians, Drs. Stidham and Harron; and (5) the commission erred in


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
reversing the deputy commissioner’s finding that Yowell met his burden of proving that he

suffered a compensable injury.

       This Court reviews legal determinations by the commission de novo. However,

“[d]ecisions of the commission as to questions of fact, if supported by credible evidence, are

conclusive and binding on this Court.” Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,

229, 409 S.E.2d 824, 826 (1991). For the reasons that follow, we affirm the commission’s

decision.

       Yowell’s first, second, and third assignments of error all allege that the commission erred

by arbitrarily dismissing the deputy commissioner’s determination regarding the credibility of

certain witnesses—namely Rudisill, Yowell, Melki, and Mahgerefth. Yowell and Rudisill both

testified that Yowell was injured on April 30, 2012 while lifting a tire at his place of

employment, Royal Import. Melki and Mahgerefth, the co-owners of Royal Import, denied that

Yowell ever reported such an injury until after he had terminated his employment. The deputy

commissioner found Yowell’s story credible and awarded him temporary total benefits. The

commission reversed the deputy commissioner’s award concluding that it was “unable to adopt

the deputy commissioner’s credibility finding” because Yowell and Rudisill’s testimony that

Yowell suffered an injury while lifting a tire on April 30, 2012 was completely contradicted by

the “initial medical records.”

       The commission has statutory authority to hear a case de novo and “is not bound by the

credibility determinations or other factual findings of the deputy.” McNamara v. Va. Empl.

Comm’n, 54 Va. App. 616, 624, 681 S.E.2d 67, 71 (2009); see also Commonwealth v. Bakke, 46

Va. App. 508, 528, 620 S.E.2d 107, 117 (2005) (“By statute, a request for review empowers the

commission to consider the case de novo.”).

               From this statutory authority . . . when the [commission] opts to
               conduct a review on the record without hearing evidence, it must
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               explain any credibility determinations it makes that are contrary to
               the deputy’s only if the deputy “ma[de] an explicit finding of
               credibility based upon a witness’ demeanor or appearance at the
               hearing.”

McNamara, 54 Va. App. at 624, 681 S.E.2d at 71 (emphasis added) (quoting Bullion Hollow

Enters., Inc. v. Lane, 14 Va. App. 725, 728, 418 S.E.2d 904, 907 (1992)). The rule first

articulated in Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 363 S.E.2d 433 (1987),

requires that when the deputy commissioner makes an explicit credibility determination based on

a witness’ demeanor or appearance, “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., 14 Va. App. at 729, 418 S.E.2d at 907 (citing Pierce, 5 Va. App. at 382, 363

S.E.2d at 437). Conversely, “[a]bsent a specific, recorded observation regarding the behavior,

demeanor or appearance of [a witness], the commission ha[s] no duty to explain its reasons for

finding [one witness] more credible than [another].” Id. (emphasis added); see also Pierce, 5

Va. App. at 383, 363 S.E.2d at 438 (“The law does not require the commission to state its

reasons for believing one witness over another.”).

       In Pierce, this Court held that the commission was required to articulate its reasons for

reaching a different conclusion than the deputy commissioner because the deputy commissioner

specifically cited his personal observation of Pierce’s appearance and demeanor on the stand—

such as Pierce’s evasive and argumentative answers on cross-examination—as the basis for

finding him not credible. Id. at 382, 363 S.E.2d at 433. In this case, unlike in Pierce, although

the deputy commissioner credited Yowell’s and Rudisill’s testimony over other testimony, that

“decision d[id] not set forth a credibility determination formed by observing the witness[es]’

demeanor or appearance.” Bullion Hollow Enters., 14 Va. App. at 729, 418 S.E.2d at 907

(emphasis added). The deputy commissioner merely concluded that he believed Yowell’s and

Rudisill’s version of events—however nothing in the deputy commissioner’s decision indicates
                                                -3-
that his conclusions were based upon his personal observation of the witnesses’ demeanor or

appearance at the hearing. Consequently, the commission had no obligation to articulate its

specific reasons for finding certain witnesses more credible than others, and therefore the Pierce

rule does not apply in this case.

       Because “the deputy commissioner’s determination of credibility [wa]s based upon the

substance of the testimony rather than upon the witness’s demeanor, such a finding [wa]s as

determinable by the full commission as by the deputy [commissioner].” Kroger Co. v. Morris,

14 Va. App. 233, 236, 415 S.E.2d 879, 881 (1992). Accordingly, this Court must next determine

whether the commission’s factual determination that Yowell did not suffer an injury while lifting

a tire at work on April 30, 2012 is supported by the record. This Court will uphold the

commission’s findings of fact as long as they are supported by credible evidence. See Bullion

Hollow Enters., 14 Va. App. at 730, 418 S.E.2d at 907 (“Although contrary evidence may exist

in the record, findings of fact made by the commission will be upheld on appeal when supported

by credible evidence.”).

       In this case, the commission’s rejection of Yowell’s claim of injury by accident at Royal

Import on April 30, 2012 is supported by credible evidence in the record. The commission

refused to accept Yowell’s version of events based on two facts: 1) the initial medical reports in

the days following April 30, 2012 where Yowell denied or was silent as to whether a particular

event caused his pain; and 2) the medical records that reflected inconsistent accounts given by

Yowell as to the specific details of the April 30, 2012 incident. Specifically, the commission

noted that the initial medical records from May 2, 2012 and May 5, 2012 reflect that Yowell

either denied, or did not mention, any injury or heavy lifting to his health care providers. The

commission placed significant weight on the May 10, 2012 medical history form where Yowell




                                               -4-
handwrote “no” when asked whether there was a particular event that caused his current pain.1

The commission declined to find Yowell’s explanation for his “no” response—that he did not see

a place on the sheet to describe his accident or that he was of unclear mind when completing the

medical questionnaire—persuasive. Importantly, the commission reasoned that Yowell’s

“negative responses to the specific questions as to whether a particular event caused his pain or

problem is simply inexplicable if the claimant had suffered the specific injury by accident at

work as alleged.” The commission additionally noted that Yowell’s account of how he was

injured to different health care providers did “not reflect histories consistent with the history

given by [Yowell] at the hearing.” The recollections he gave to Drs. Harron, Qandah, and

Leipzig varied in the details of the incident—for example, what item Yowell was lifting, whether

he was struck in the chest, and when he began to experience pain.

       Yowell’s fourth assignment of error that the “Commission erred in failing to give proper

deference to the opinions of the treating physicians, Dr. Stidham and Dr. Harron,” is similarly

without merit. The “opinions” that Yowell claims that the commission gave no basis for

“ignoring” are letters that were drafted by Yowell’s attorneys to which the doctors had the option


       1
          Yowell asserts that “[d]espite the Deputy Commissioner’s clear and careful ruling, the
Commission ignored this Court’s Martin holding.” In addressing Yowell’s inconsistent
statements on May 2, 2012 and May 10, 2012, the deputy commissioner cited Board of
Supervisors v. Martin, 3 Va. App. 139, 144, 348 S.E.2d 540, 542 (1986), for the proposition that
a “doctor’s history taken from claimant or others is not evidence upon which the Commission
should rely to determine how the accident occurred, because it is impermissible hearsay if used
for that purpose.” Yowell’s argument is misplaced. It is well established that the commission
has the discretion to consider hearsay statements in arriving at its findings of facts and is not
bound by common law rules of evidence. See Va. Workers’ Comp. Comm’n R. 2.2. This Court
explained in Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 318, 456 S.E.2d 541, 543
(1995), that the holding in Martin was limited to the fact that the “commission’s findings
violated Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922), which stated that a
party is bound by his or her unequivocal testimony at trial. Any other language in Martin
regarding the common law rules of evidence was dicta.” Moreover, in this case, the medical
records were not being used to determine how the injury happened, but merely to impeach
Yowell’s claim that he suffered an injury at work on April 30, 2012. Therefore, the commission
did not improperly rely on Yowell’s medical histories in rejecting his version of events.
                                                -5-
to check “true” or “false.” Dr. Stidham’s letter was a long paragraph that detailed the treatment

he provided Yowell and included the sentence: “The April 30, 2012 workplace accident caused

his injury thereby causing the need for treatment and his subsequent disability.” Similarly,

Dr. Harron’s letter included the sentence: “The April 30, 2012 workplace accident caused

Mr. Yowell’s injury, thereby causing the need for the recommended treatment.” As discussed

above, the commission’s decision was not based on whether Yowell was physically in pain or

whether he needed treatment—it simply found that Yowell’s claim that he was injured at work

on April 30, 2012 was not credible. Drs. Stidham’s and Harron’s knowledge of how Yowell

developed back problems is limited to what Yowell himself told them. Therefore, the

commission was not, as Yowell claims, “ignoring this clear opinion of the treating specialist.”

       “For an injury to be compensable . . . the claimant must prove by a preponderance of the

evidence three elements: (1) that the injury was caused by an accident; (2) that the injury was

sustained in the course of the employment; and (3) that the injury arose out of the employment.”

Southland Corp. v. Parson, 1 Va. App. 281, 283-84, 338 S.E.2d 162, 163 (1985). Therefore,

because there is credible evidence in the record to support the commission’s factual finding that

Yowell did not suffer an injury at work on April 30, 2012, we cannot say as a matter of law that

the commission erred in ruling that Yowell failed to meet his burden of proving a compensable

injury. Consequently, Yowell’s fifth assignment of error fails.

       Based on the foregoing, we find no error and affirm the commission’s ruling that Yowell

failed to prove a compensable injury.

                                                                                         Affirmed.




                                               -6-
