Supreme Court Overturns Deputy Commissioner Deference Rule

For approximately fifteen years, it has been the general rule that the Full Commission is free to reach a different conclusion on credibility from that reached by the deputy commissioner, but it must document that it paid sufficient consideration to the fact that credibility is best judged by the firsthand observer of a witness, especially when that observation was the only one. When overturning a deputy commissioner's decision, the Full Commission was encouraged to include findings of fact showing why the deputy commissioner's credibility determination was rejected. This rule was based upon the general philosophy that the hearing officer is the best judge of the credibility of witnesses because he or she is a firsthand observer of the witnesses whose testimony he or she must weigh and accept or reject.

On December 31, 1998, the North Carolina Supreme Court rejected this longstanding philosophy and held that the Full Commission is not required to demonstrate that sufficient consideration was paid to the fact that credibility may be best judged by a firsthand observer of the witness when that observation was the only one. Whether the Full Commission conducts a hearing or reviews a cold record, N.C.G.S. '97-85 places the ultimate fact finding function with the Commission and not the hearing officer. It is the Commission that ultimately determines credibility, whether from a cold record or from live testimony. Adams v. AVX Corporation (citation omitted) Risk Handling Hint: Risk managers are encouraged to review their cases involving recent wins at the Court of Appeals to ensure that they are not based upon the deputy commissioner deference rule.