Anthony Petraitis v. Prevent Blindness America and St. Paul Fire & Marine Insurance Company

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.

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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.

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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.