Augusta Lumber & Supply v. James F. Truslow

• Court: Court of Appeals of Virginia
• Decided: June 24, 1997
• Docket: 2563963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

AUGUSTA LUMBER & SUPPLY, INC. AND LIBERTY MUTUAL FIRE INSURANCE COMPANY MEMORANDUM OPINION * v. Record No. 2563-96-3 PER CURIAM JUNE 24, 1997 JAMES F. TRUSLOW

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(J. David Griffin; Fowler, Griffin, Coyne & Coyne, P.C., on briefs), for appellants. (Terry L. Armentrout; Armentrout & Armentrout, P.L.C., on brief), for appellee.

Augusta Lumber & Supply, Inc. and its insurer (hereinafter

collectively referred to as "employer") contend that the Workers'

Compensation Commission (commission) erred in reversing the

deputy commissioner's credibility determination and finding that

James F. Truslow (claimant) proved that he sustained an injury by

accident arising out of and in the course of his employment on

August 30, 1995. Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision. Rule

5A:27.

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). "In

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. order to carry his burden of proving an 'injury by accident,' a

claimant must prove that the cause of his injury was an

identifiable incident or sudden precipitating event and that it

resulted in an obvious sudden mechanical or structural change in

the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858,

865 (1989).

The deputy commissioner was not persuaded that claimant

sustained a work-related accident on August 30, 1995. The deputy

commissioner based his conclusion upon his findings that claimant

worked for four days after the accident, he did not report the

accident immediately, and he did not seek medical attention until

four weeks after the accident. The full commission reversed the deputy commissioner and

held that claimant's testimony regarding the August 30, 1995

accident was credible. In so ruling, the commission found that

claimant testified that he immediately reported the accident to

his supervisor, Glen Harris, and later that day he reported the

accident to another supervisor, Joe Peduto. The commission also

considered the medical records in which claimant consistently

reported a history of an accident on August 30, 1995 while

loading lumber onto a trailer at work.

Employer contends that the full commission arbitrarily

disregarded the deputy commissioner's credibility determination

and failed to articulate a sufficient basis for its conclusion.

However, [t]he principle set forth in [Goodyear Tire &

2 Rubber Co. v.] Pierce[, 5 Va. App. 374, 383, 363 S.E.2d 433, 438 (1987),] does not make the deputy commissioner's credibility findings unreviewable by the commission. Rather, it merely requires the commission to articulate its reasons for reversing a specific credibility determination of the deputy commissioner when that determination is based upon a recorded observation of demeanor or appearance of a witness. In short, the rule in Pierce prevents the commission from arbitrarily disregarding an explicit credibility finding of the deputy commissioner.

Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 729, 418

S.E.2d 904, 907 (1992). In this case, as in Bullion, upon a review of the deputy

commissioner's decision, we do not find a "specific recorded

observation" concerning any witness' demeanor or appearance

related to a credibility determination. The deputy commissioner

merely concluded from the evidence before him that claimant had

not met his burden of proof. "Absent a specific, recorded

observation regarding the behavior, demeanor or appearance of

[the witnesses], the commission had no duty to explain its

reasons for . . . [accepting claimant's version of events]." Id.

Moreover, when the commission's findings are supported by

credible evidence, as in this case, those findings are conclusive

and binding on appeal. Ross Laboratories v. Barbour, 13 Va. App.

373, 377-78, 412 S.E.2d 205, 208 (1991). Claimant testified that

on August 30, 1995, at approximately 3:10 p.m., he felt a pull in

his neck down to the middle of his back while loading flooring

lumber onto a truck. At that time, he reported to Harris that he

3 might have pulled something. Claimant also reported the incident

to Peduto. Claimant continued to work, but felt stiff the next

day. He worked for four more days, but refrained from heavy

labor. The medical records of Drs. William J. Knizer, Thomas J.

Spicuzza, and William C. Broaddus corroborated claimant's

testimony. Those records consistently reported a history of a

neck and back injury while loading lumber at work. A November

22, 1995 MRI revealed a moderate right paracentral herniated

nucleus pulposus at the C6-7 level. On March 18, 1996, Dr.

Spicuzza opined that claimant's disability was causally related

to the August 30, 1995 accident. Based upon claimant's testimony and the corroborating

medical histories, we find that credible evidence supports the

commission's decision that claimant suffered an injury by

accident arising out of and in the course of his employment on

August 30, 1995 and that its decision was not arbitrary.

"Although contrary evidence may exist in the record, findings of

fact made by the commission will be upheld on appeal when

supported by credible evidence." Bullion, 14 Va. App. at 730,

418 S.E.2d at 907.

For the reasons stated, we affirm the commission's decision.

Affirmed.