COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Overton 

Argued at Salem, Virginia 

CENTRAL VALLEY RUBBER SERVICE 

 and ZURICH-AMERICAN INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1494-96-3 JUDGE SAM W. COLEMAN III 

 MARCH 11, 1997 

VICKI L. ARTHUR 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 C. Ervin Reid (William R. Culbreth; Wright, 

Robinson, McCammon, Osthimer & Tatum, on 

brief), for appellants. 

 Rhonda L. Overstreet (Gary L. Lumsden; 

Lumsden & Overstreet, on brief), for 

appellee. 

 Central Valley Rubber Service and Zurich-American Insurance 

Company (employer) appeal the commission's award of temporary 

total benefits to Vicki L. Arthur (claimant) on the ground that 

the commission failed to state a sufficient basis for overruling 

the deputy commissioner's credibility determination of the 

claimant and an eyewitness. Finding no error, we affirm the 

commission's decision. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So 

viewed, the evidence proved that the claimant worked as a 

shipping and receiving clerk for Central Valley Rubber Service. 

 

 * Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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As a part of her job, she was required to assist in unloading 

delivery trucks. On the date she was injured, the claimant was 

attempting to help Roger Smith, an employee of Estes Express 

Line, remove two rubber belts from his truck. The belts were 

rolled into cylinders about two and one-half feet in diameter and 

three and one-half feet in length. 

 Because the rolls filled the entire width of the truck, the 

claimant testified that she used a steel pipe to attempt to pivot 

one of the rolls so it could be removed from the truck. She 

stated that the rolls were not secured by "chock" blocks. As she 

was trying to move the roll, it slipped off the pipe and pinned 

her right leg between the roll and the side of the trailer. The 

claimant testified that she told Roger Smith, who was standing 

about five feet away, that she had "pinched" her leg, but she 

continued to work. She also told the "inside sales guy" right 

after the incident that she had "pinched" her leg. James 

Carpenter, the employer's operation manager, testified that the 

inside salesman told him about the accident the next day. 

 Medical records introduced by the claimant prove that she 

suffered a severe contusion to her right leg secondary to a 

crush-type injury. The records also show that she reported to 

the doctors that her leg was injured when she was pinned between 

the roll and the trailer. 

 Testifying by deposition, Roger Smith said that the rolls 

had been "chock" blocked so they would not roll and damage other 
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freight. He testified that he and the claimant tried to move one 

of the rolls but could not do so. After the claimant and Smith 

could not move the roll, the claimant asked two other men to 

help. Smith testified that the claimant stood at the back of the 

truck with him while the two men moved the rolls. He had not 

seen the claimant's leg get caught earlier, and he denied that 

the claimant told him she had been hurt. He testified that he 

did not learn of the alleged accident until he finished his route 

and his dispatcher asked "if there was an accident on my truck 

because he was concerned that there might have been an accident 

and I didn't report it." 

 After hearing the evidence, the deputy commissioner denied 

the claim, finding that the claimant was not credible based 

"partly upon [her] demeanor, partly upon the substance of her 

testimony, and partly upon a comparison of that testimony with 

the account given by Roger Smith, whom we believe to be a 

disinterested third party." The deputy thought the claimant's 

testimony was "vague and tentative" and she did not impress the 

deputy as being "a straightforward, truthful individual." 

 Upon review, the commission reversed the deputy's decision 

and awarded the claimant temporary total disability benefits. 

The commission found that, while the claimant was unsure of some 

details, her testimony was not inherently incredible and the fact 

that she was injured by an accident on the job as she claimed was 

corroborated by other evidence. The commission also found that 
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Smith was not a disinterested third party because "he may have 

violated his company's policy in not reporting the incident" and 

therefore had a pecuniary interest in his continued employment 

that could have influenced his testimony. 

 It is well settled that the commission may make factual 

findings that differ from those made by a deputy commissioner, 

including a credibility determination based upon appearance and 

demeanor, as long as the commission articulates a basis for its 

differing conclusion which is supported by credible evidence in 

the record. Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App. 

120, 123, 384 S.E.2d 333, 335 (1989); Williams v. Auto Brokers, 

6 Va. App. 570, 575, 370 S.E.2d 321, 324 (1988). The commission 

may "evaluate the testimony of witnesses in the light of human 

experience, ascertain which testimony is more worthy of belief, 

and grant to it its appropriate weight." Pierce, 9 Va. App. at 

126-27, 384 S.E.2d at 337. 

 Here, the commission stated the reasons for its factual 

findings and explained why its findings differed from those of 

the deputy, including the deputy's credibility determinations. 

The reasons given for the commission's factual findings are 

sufficient and are supported by credible evidence in the record. 

 The employer contends that the holding in Rust Engineering 

Co. v. Ramsey, 194 Va. 975, 76 S.E.2d 195 (1953), is dispositive 

in this case. In Rust, the Virginia Supreme Court held that the 

commission's decision to reverse factual findings of a deputy was 
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unsupported by credible evidence. Id. at 978, 76 S.E.2d at 

197-98. However, the factual scenario in Rust differs 

significantly from this case. In Rust, the claimant gave two 

different versions of how he was injured, and neither version was 

corroborated by other evidence. Additionally, several witnesses 

who were present when the claimant alleged he was injured 

testified that they did not see any unusual occurrence. Id. at 

978, 76 S.E.2d at 197. In Rust, no credible evidence proved that 

the claimant suffered an injury by accident that arose out of or 

during his employment. 

 In the case at bar, the claimant's testimony about the 

accident was consistent and was corroborated by the employer's 

operations manager and the claimant's medical records. Although 

the only eyewitness testified that he did not see an accident and 

that the claimant did not tell him she was hurt, the commission 

found that he was not a disinterested witness and also found that 

the incident, admittedly minor when it happened according to the 

claimant, could easily have been disregarded or overlooked by the 

witness. 

 The commission articulated a sufficient basis for making 

factual findings different from those made by the deputy 

commissioner, and we find that credible evidence exists in the 

record to support the commission's decision. Accordingly, we 

affirm the commission's award of temporary total benefits to the 

claimant. 
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Affirmed.