Groundwater Tech., Inc. v. John Troy Partin

• Court: Court of Appeals of Virginia
• Decided: October 3, 1995
• Docket: 0094951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia

GROUNDWATER TECHNOLOGY, INC., ET AL.

v. Record No. 0094-95-1 MEMORANDUM OPINION * BY JUDGE RICHARD S. BRAY JOHN TROY PARTIN OCTOBER 3, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Susan B. Potter (Vandeventer, Black, Meredith & Martin, on brief), for appellants.

Gregory E. Camden (Rutter & Montagna, on brief), for appellee.

The Workers' Compensation Commission (commission) determined

that John T. Partin (claimant) suffered a compensable accidental

injury, which resulted in both temporary total and temporary

partial disability, and awarded attendant benefits. Groundwater

Technology, Inc. (employer) appeals, arguing that the evidence was

insufficient to support the decision and, further, that the

commission "lacked the authority" to award "unspecified" temporary

partial disability. We find the evidence adequate to support an

award of benefits to claimant, but remand for the commission to fix

an award appropriate to the circumstances.

The parties are fully conversant with the record in this case,

and we recite only those facts necessary to a disposition of the

appeal. "Factual findings by the commission that are supported by

credible evidence are conclusive and binding upon this Court on

appeal." Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131,

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 134, 428 S.E.2d 32, 34 (1993) (citing Code § 65.2-706). Under

familiar principles, we must consider the evidence in the light

most favorable to the prevailing party below, claimant in this

instance. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App.

503, 504, 339 S.E.2d 916, 916 (1986).

"In order to recover on a workers' compensation claim, a

claimant must prove: (1) an injury by accident, (2) arising out of

and (3) in the course of his employment." Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988) (citations

omitted); see Code § 65.2-101. An "injury by accident" requires

proof of "(1) an identifiable incident; (2) that occurs at some

reasonably definite time; (3) an obvious sudden mechanical or

structural change in the body; and (4) a causal connection between

the incident and the bodily change." Chesterfield County v. Dunn,

9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990). Injuries

resulting from repetitive or cumulative trauma are not compensable

injuries by accident. Merillat Industries, Inc. v. Parks, 246 Va.

429, 433-34, 436 S.E.2d 600, 602 (1993). A "determination of

causation" by the commission is a "factual finding that will not be

disturbed on appeal," if supported by credible evidence. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814,

817 (1989).

Here, claimant testified that he experienced a "spike type

pain" in his "lower back," when "coming up from a squatting

position" to shovel a "load of clay into the back of [a] pickup

truck" in the course of his employment. The incident had been

- 2 - preceded by "a half hour to 45 minutes" of "shoveling" and "some

muscle tightening" in claimant's back. However, the "spike" pain

was distinctive and caused claimant to terminate the activity and

seek medical attention for persistent "back pain."

The medical evidence reflects a diagnosis of "recurrent

medically intractable left sciatica," following the "onset of

recurrent back pain . . . [when claimant] shoveled . . . wet clay

into a pickup truck." An MRI disclosed a "disk fragment . . .

producing nerve root impingement," which "correlat[ed] well with

[claimant's] complaints and neurologic findings," and surgical

intervention was deemed necessary to "achieve long-term remission

of [the] problem." The subsequent surgery confirmed and corrected

the suspected pathology and was followed by a progressive

resolution of the related symptoms. Such evidence established that claimant suffered an injury

attributable to an identifiable work related incident at a definite

time which caused an immediate structural change in his body,

consistent with the finding of the commission.

Contrary to employer's assertion, the commission's decision is

not precluded by the deputy commissioner's conclusion that

claimant's credibility was compromised by "inconsistencies" in the

record. The commission may reverse an "explicit finding of

credibility" by a deputy "when it articulates a basis for its

different conclusion that is supported by credible evidence."

Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 728, 418

S.E.2d 904, 907 (1992). The commission in this instance dismissed

- 3 - the "variances" in "claimant's description of . . . his pain" as

"minor," a finding supported by the record.

Nevertheless, we must remand the proceedings for specific

determination of claimant's temporary partial disability award.

Code § 65.2-502 prescribes the formula to ascertain appropriate

weekly compensation for partial incapacity. Code § 65.2-705(A)

requires the commission to "make an award which, together with a

statement of the findings of fact, rulings of law, and other

matters pertinent to the questions at issue, shall be filed with

the record of the proceedings." See also Code § 65.2-101. "A

compensation award is an adjudication of the entitlements and

obligations of the parties." Rossello v. K-Mart Corp., 15 Va. App.

333, 336, 423 S.E.2d 214, 216 (1992); see Chesapeake Bay Seafood

House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864, 866

(1992). The commission must, therefore, decide the proper

compensation incidental to its award, attended by the requisite

factual findings. Otherwise, the award remains incomplete.

Accordingly, we affirm the decision of the commission, but

remand for an award of specific temporary partial disability

compensation, accompanied by related factual findings, in

accordance with statute. Affirmed and remanded.

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