B & N Contractors v. Vearlyn Wheeler

• Court: Court of Appeals of Virginia
• Decided: July 21, 1998
• Docket: 0575981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Bumgardner

B & N CONTRACTORS, INC. AND GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA MEMORANDUM OPINION * v. Record No. 0575-98-1 PER CURIAM JULY 21, 1998 VEARLYN WHEELER

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Bradford C. Jacob; Taylor & Walker, P.C., on brief), for appellants. (Byron A. Adams, on brief), for appellee.

B & N Contractors, Inc. and its insurer (hereinafter

referred to as employer) contend that the Workers' Compensation

Commission (commission) erred in reversing the deputy

commissioner's credibility determination and finding that Vearlyn

Wheeler (claimant) proved that she sustained an injury by

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

December 2, 1996. 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. See

Rule 5A:27.

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

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

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

order to carry [her] burden of proving an 'injury by accident,' a * Pursuant to Code § 17-116.010 this opinion is not designated for publication. claimant must prove that the cause of [her] 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 found that claimant did not prove

she sustained an injury by accident arising out of and in the

course of her employment on December 2, 1996. In so ruling, the

deputy commissioner found that claimant's testimony was not

credible. The deputy commissioner noted that "claimant testified

in a stilted manner without eye contact" and that she

"exaggerated her injuries, in particular, asserting that even as

of the hearing she was suffering from dizziness and blurred

vision . . . ." The full commission reversed the deputy commissioner's

credibility determination. The full commission based its

decision on the fact that "the medical records corroborate

[claimant's] testimony that she was struck in the head by an

arrow sign when a beam was thrown on the ground."

Employer contends that the full commission disregarded the

deputy commissioner's credibility determination without a

sufficient basis to do so. However, [t]he principle set forth in [Goodyear Tire & 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

-2- specific credibility determination of the deputy commissioner when that determination is based upon a recorded observation of the 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).

Here, the commission articulated specific reasons for

disagreeing with the deputy commissioner's credibility

determination. Contrary to employer's assertion, the commission

properly considered the histories contained in the medical

records to corroborate claimant's testimony regarding the

accident. See Pence Nissan Oldsmobile v. Oliver, 20 Va. App.

314, 319, 456 S.E.2d 541, 544 (1995).

Moreover, when the commission's findings are supported by

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

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

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

on December 2, 1996, she took a break after helping to unload

beams from a truck and stood beside an arrow board sign, which

was on a stand with two wheels. Claimant stated that an employee

was throwing beams on the ground, and she was told that one of

the beams bounced up and hit the stand. As she stood under the

sign, it started to roll. Claimant thought that she had moved

out of the sign's path, but an iron part of the sign hit her

head.

-3- Claimant reported the incident to her supervisor and sought

medical treatment that day. The medical records contain a

history of the accident consistent with claimant's testimony. In

addition, claimant's neighbor, Theresa D. McKenney, testified

that on December 2, 1996 between 2:00 and 3:00 p.m., claimant

came to her house and was "incoherent." Claimant reported the

accident to McKenney. McKenney testified that claimant was dizzy

and could not see very well. McKenney accompanied claimant in a

taxicab to the hospital emergency room. Based upon claimant's testimony, which was corroborated by

McKenney's testimony and the medical records, we find that

credible evidence supports the commission's decision that

claimant sustained an injury by accident arising out of and in

the course of her employment on December 2, 1996. "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 these reasons, we affirm the commission's decision. Affirmed.

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