Several decisions of the Court of Appeals have required express credibility determinations whenever the claimant's credibility is crucial to the decision of the claim. See, e.g., Lewis v. Employment Division, 66 Or. App. 303, 673 P.2d 1376 (1984); Petro v. Employment Division, 32 Or. App. 17, 573 P.2d 1250 (1978). By an express credibility determination, the court means an express finding on the claimant's credibility, together with an explanation for the finding.
Because the referee had an opportunity to see and hear the witnesses, his determination of credibility is given special weight. See Lewis v. Employment Division, 66 Or. App. 303, 308, 673 P.2d 1376 (1984). When EAB chooses not to accept the referee's credibility findings, it must explain why it disagrees and what, if any, weight it gave to the referee's credibility determination.
Judging the credibility of witnesses is certainly an element of the referee's function. Lewis v. Employment Division, 66 Or. App. 303, 673 P.2d 1376 (1984). Physical appearance can be a clue to credibility, but of equal or greater importance is what a witness says and how she says it. Beyond testing credibility by the inherent plausibility of a witness' testimony, see Lewis and Clark College v. Bureau of Labor, 43 Or. App. 245, 256, 602 P.2d 1161 (1979), rev den 288 Or. 667 (1980) (Richardson, J., concurring opinion), we are satisfied that the audible indicia of a witness' demeanor are sufficient for a referee to make an adequate judgment as to believability.
The Board is not required to use the same criteria that we did. All that is required is that, if the Board reverses a referee's finding on credibility, it "state precisely what it found to be the facts and * * * explain how those facts [led] to its conclusion." See Lewis v. Employment Division, 66 Or. App. 303, 307, 673 P.2d 1376 (1984). We note that our cases did not require us, on de novo review, to accept a referee's credibility finding.
When rejecting a referee's determination of credibility, EAB must explain its credibility finding by specifically describing why it disagrees with that determination. Lewis v. Employment Division, 66 Or. App. 303, 673 P.2d 1376 (1984). A conclusion that the supervisor was more credible, based on the finding that she was "consistent, sincere and straightforward," does not explain why it disagreed with the referee.
" If EAB reverses the referee's finding that petitioner is credible, it must, as Petro requires, "state precisely what it found to be the facts and explain how those facts lead to its conclusion." See also Rulien v. Employment Division, supra, 70 Or App at 705; Derochier v. Employment Division, 70 Or. App. 521, 524, 690 P.2d 519 (1984); Lewis v. Employment Division, 66 Or. App. 303, 307, 673 P.2d 1376 (1984). Reversed and remanded for reconsideration.
However, there is nothing in the order or the record which suggests that credibility was an issue in the hearings officer's mind. If it becomes an issue on remand, the hearings officer must articulate a rational basis for whatever credibility determinations he makes. See Lewis v. Employment Division, 66 Or. App. 303, 673 P.2d 1376 (1984). Reversed and remanded for reconsideration.
This court has held, time and time again, that, in a case hinging on credibility, the referee must make explicit, reasoned, logical credibility findings, including a designation of the evidence on which he relies in reaching his decision; failure to do so requires remand. Derochier v. Employment Division, 70 Or. App. 521, 690 P.2d 519 (1984); Ashmore v. Employment Division, 70 Or. App. 516, 690 P.2d 522 (1984); Steinkellner v. Employment Division, 67 Or. App. 50, 676 P.2d 941 (1984); Lewis v. Employment Division, 66 Or. App. 303, 673 P.2d 1376 (1984); Petro v. Employment Division, 32 Or. App. 17, 573 P.2d 1250 (1978). Petitioner next argues that there is no substantial evidence to support the referee's finding of fact that "employer had an on-call coordinator to handle emergencies" (emphasis supplied) or the conclusion which followed from it that petitioner did not have good cause to leave work.
It is the obligation of EAB, when faced with a direct finding on credibility by a referee, to explain fully the circumstances which lead it to disagree with the credibility determination. See, e.g., Derochier v. Employment Division, 70 Or. App. 521, 690 P.2d 519 (1984); Ashmore v. Employment Division, 70 Or. App. 516, 690 P.2d 522 (1984); Steinkellner v. Employment Division, 67 Or. App. 50, 676 P.2d 941 (1984); Lewis v. Employment Division, 66 Or. App. 303, 673 P.2d 1376 (1984). If EAB regards its present statement as satisfying the requirement of those cases, it apparently misreads them. Any reasoned or principled explanation for disagreeing with the referee's assessment of credibility is wholly lacking. Unless a better one can be constructed, there exists no justification for denial of unemployment compensation benefits in this case.
When EAB reverses a referee's credibility decision, it must explain why, state precisely what it found to be the facts and explain how those facts lead it to a conclusion different than the referee's. Hill v. Employment Division, 73 Or. App. 422, 698 P.2d 1010 (1985); Rulien v. Employment Division, 70 Or. App. 703, 690 P.2d 530 (1984); Derochier v. Employment Division, 70 Or. App. 521, 690 P.2d 519 (1984); Ashmore v. Employment Division, 70 Or. App. 516, 590 P.2d 522 (1984); Steinkellner v. Employment Division, 67 Or. App. 50, 52, 676 P.2d 941 (1984); Lewis v. Employment Division, 66 Or. App. 303, 673 P.2d 1376 (1984); Petro v. Employment Division, 32 Or. App. 17, 573 P.2d 1250 (1978); see also Allen v. Employment Division, 73 Or. App. 426, 698 P.2d 1009 (1985); Brewer v. Employment Division, 47 Or. App. 1131, 615 P.2d 1170 (1980); McMann v. OLCC, 27 Or. App. 487, 556 P.2d 973 (1976), rev den (1977). If that is not done, as it was not done here, there is no way for us to ascertain whether EAB's decision to reverse is supported by substantial evidence. One of the EAB members dissented, concluding, as did the referee, that claimant was willing to continue work.