Gray Thomas Craig v. Grand Piano and Furniture, etc

• Court: Court of Appeals of Virginia
• Decided: January 16, 2001
• Docket: 2043003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Retired Judge Duff ∗

GRAND PIANO AND FURNITURE COMPANY, INC. AND TRANSPORTATION INSURANCE COMPANY

v. Record No. 2010-00-3

GARY THOMAS CRAIG MEMORANDUM OPINION ∗∗ PER CURIAM GARY THOMAS CRAIG JANUARY 16, 2001

v. Record No. 2043-00-3

GRAND PIANO AND FURNITURE COMPANY, INC. AND TRANSPORTATION INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Roya Palmer Ewing, on brief), for Grand Piano and Furniture Company, Inc. and Transportation Insurance Company.

(Howard A. Herzog, on briefs), for Gary Thomas Craig.

Grand Piano and Furniture Company, Inc. and its insurer

(hereinafter referred to as "employer") contend that the

Workers' Compensation Commission erred in finding that Gary

Thomas Craig proved he sustained an injury by accident arising

out of and in the course of his employment. Craig contends that

∗ Retired Judge Charles H. Duff took part in the consideration of this case by designation pursuant to Code § 17.1-400(D). ∗∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. the commission erred in refusing to amend the deputy

commissioner's determination of his average weekly wage. Upon

reviewing the record and the briefs of the parties, we conclude

that these appeals are without merit. Accordingly, we summarily

affirm the commission's decision. See Rule 5A:27.

I. Injury by Accident (Record No. 2010-00-3)

"In order to carry [the] burden of proving an 'injury by

accident,' a claimant must prove that the cause of [the] 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). "In determining whether credible

evidence exists [to support the commission's ruling], the

appellate court does not retry the facts, reweigh the

preponderance of the evidence, or make its own determination of

the credibility of the witnesses." Wagner Enters., Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). "The

fact that there is contrary evidence in the record is of no

consequence if there is credible evidence to support the

commission's finding." Id.

In ruling that Craig proved he sustained a compensable back

injury at work, the commission found as follows:

Although the claimant has had some uncertainty regarding the date of the incident, this is not fatal to his claim. He has consistently related to an accident

- 2 - in late-August involving lifting furniture, having some days off from work, and the golf incident. The claimant testified that on August 17, 1998, he experienced sharp pain when he was lifting a sleeper sofa onto a dolly. Similarly, on September 3, 1998, he completed the Employer's First Report of Accident and detailed an injury in late-August from "lifting and moving furniture." In his recorded statement on September 22, 1998, the claimant verified that the accident occurred sometime in late-August 1998 because he was moving several sleeper sofas and noticed pain. In his May 21, 1999, answers to interrogatories, he asserted that he experienced a burning, stabbing low back pain on August 21, 1998.

Witness testimony also supports the claimant's assertions. [Bill] Barker testified to observing [claimant] limping and knowing that [claimant] had been working in the sleeper sofa department. [Fred] Hill testified that sometime after September 9, 1998, he spoke with the claimant who stated that he lifted sleeper sofas before the golf incident. Regardless that pain caused him to collapse while trying to play golf, there is no evidence that this activity caused the back condition.

In rendering its decision, the commission considered the

various medical histories, Craig's testimony, the Employer's

First Report of Accident, Craig's recorded statement to

employer, Craig's answers to interrogatories, and the testimony

of Craig's co-workers. The commission resolved any

inconsistencies in this evidence in favor of Craig. We hold

that Craig's testimony, which was corroborated by the testimony

of Hill and Barker, provides credible evidence to support the

- 3 - commission's finding that Craig proved he sustained an

identifiable incident at work which resulted in a back injury.

Thus, those findings, which are sufficient to prove an injury by

accident arising out of and in the course of employment, are

conclusive and binding on appeal. See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

II. Average Weekly Wage (Record No. 2043-00-3)

Although Craig asserts that there was a mutual mistake of

fact with respect to the calculation of his average weekly wage

because it did not include sales commissions, we affirm the

commission's ruling.

The hearing in this matter was held on December 2, 1999.

At that hearing, the parties submitted a wage chart from which

it was agreed the deputy commissioner would determine Craig's

average weekly wage. The deputy commissioner issued an opinion

on December 29, 1999.

By letter dated December 31, 1999, Craig asserted that the

deputy commissioner's calculation of his average weekly wage was

incorrect. Craig submitted W-2 forms for the years 1997 and

1998 as a basis for his request that the commission amend his

average weekly wage to include sales commissions. The

commission refused to consider the forms, holding that Craig

failed to prove they were discovered after the hearing or could

not have been discovered before the hearing with due diligence.

- 4 - Based upon this finding, the commission denied Craig's request

that it amend his average weekly wage.

Although "an employee's average weekly wage, even after

being agreed to by the parties and set forth in an award of the

commission, is subject to modification upon the grounds of

fraud, misrepresentation, mistake or imposition," Mercy

Tidewater Ambulance Serv. v. Carpenter, 29 Va. App. 218, 226,

511 S.E.2d 418, 421-22 (1999), the commission does not err in

applying the usual standards for considering "after-discovered"

evidence. See Williams v. Peoples Life Insurance Co., 19 Va.

App. 530, 532, 452 S.E.2d 881, 883 (1995). The record proved

that Craig possessed a copy of the wage chart as of December 2,

1999. However, he did not contest its accuracy and he did not

request that his average weekly wage be amended until December

31, 1999, two days after the deputy commissioner issued the

opinion.

Craig provided no explanation for the delay. No evidence

proved that he could not have obtained the W-2 forms in a timely

manner before the hearing. Thus, Craig did not sustain his

burden to timely produce evidence that would justify amending

the average weekly wage as determined by the deputy commissioner

using the wage chart agreed upon by the parties.

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

Affirmed.

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