The opinion issued by the court of appeals in Kroger Co. v. Morris was both short and, in light of precedent, predictable. The practical consequences of the reasoning used by the court in this and similar cases, however, may be much less predictable than is desirable. The case concerned a Virginia Worker's Compensation Commission decision that contained a finding regarding the credibility of a witness which contradicted the finding of the deputy commissioner who presided at the hearing. The court of appeals held that it is permissible for the worker's Compensation Commission to make a credibility finding which differs from that of the deputy, so long as the deputy's finding was based on the substance of the witness' testimony rather than the appearance or demeanor of the witness. The distinction the court has made between "demeanor credibility" and "substance credibility" has theoretical appeal to the extent that the two types of credibility differ, as "demeanor credibility" can only be evaluated by one who has actually observed the witness, while "substance credibility" can be determined from the written record alone. The possibilities, however, that deputies may not specify which type of credibility has influenced their determinations, that deputies might not be aware of the extent to which each type has influenced their decisions, and that demeanor may in any event be an unreliable indicator of veracity, call into question the court's credibility distinction.
Nicole R. Beyer,
The Credibility Distinction In Kroger Co. v. Morris,
U. Rich. L. Rev.
Available at: http://scholarship.richmond.edu/lawreview/vol27/iss4/14