Hardees of Charlottesville 3 v. Crawford

• Court: Court of Appeals of Virginia
• Decided: November 10, 1997
• Docket: 1411972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

HARDEES OF CHARLOTTESVILLE #3 AND BODDIE NOELL ENTERPRISES, INC. MEMORANDUM OPINION * v. Record No. 1411-97-2 PER CURIAM NOVEMBER 10, 1997 BRENDA LEE CRAWFORD

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Jimese L. Pendergraft; John S. Nevin; Richard E. Garriott, Jr.; Knight, Clarke, Dolph & Rapaport, on briefs), for appellants.

(Ronald L. Morris; Berry & Early, on brief), for appellee.

Hardees of Charlottesville #3 and Boddie Noell Enterprises,

Inc. (employer) contend that the Workers' Compensation Commission

erred in reversing the deputy commissioner's credibility

determination and finding that Brenda Lee Crawford (claimant)

proved that she sustained an injury by accident arising out of

and in the course of her employment on October 31, 1994. 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. See 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 [her] burden of proving an 'injury by accident,' a

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 was not persuaded that claimant

sustained a work-related accident on October 31, 1994. The

deputy commissioner based his conclusion upon the inconsistencies

between the Time Clock Activity Report and the testimony of

claimant and Lucy Snow (formerly Tilson), employer's assistant

manager at the time of the alleged accident. The commission reversed the deputy commissioner and accepted

claimant's testimony regarding the October 31, 1994 accident. In

so ruling, the commission found that claimant testified that she

immediately reported the accident to her manager, Maurice

Bartley. The commission also considered the medical records,

which consistently corroborated claimant's testimony regarding

the accident and her continuing pain. The commission

"recognize[d] the various inconsistencies evinced by the

witnesses' testimony particularly regarding the time of the

incident. However, [it was] more persuaded that the details of

the incident faded in the minds of the witnesses over two years,

rather than that the claimant and witnesses fabricated the

incident."

2 Employer contends that the 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 & 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 her 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.

Although the deputy commissioner ambiguously referred to

Snow's pause in answering a question as an indication of her

3 being an "unwilling" witness, this reference does not constitute

a specific recorded observation related to a credibility

determination. The deputy commissioner did not specifically find

that Snow's demeanor or appearance indicated that her testimony

was untruthful, evasive, or otherwise incredible.

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 Laboratories v. Barbour, 13 Va.

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

that on October 31, 1994 between 5:30 and 6:00 a.m., when she and

Snow lifted a full, four foot tall urn of tea, claimant felt a

pop in her back and a sharp pain. She reported the incident to

her manager, Maurice Bartley, who told her to take pain pills.

Bartley did not fill out an accident report. Claimant's back

continued to hurt, but she continued to work, taking pain pills

to treat her symptoms. On February 20, 1995, while lifting a

five gallon bucket of tea, she felt a sharp pain and popping in

the same part of her back. She told Judy Taylor, the store

manager, of the incident. The testimony of Donna Shifflett and

Snow corroborated claimant's version of events. In addition, the

medical records of the Martha Jefferson Hospital emergency room

and Drs. Ronald Lather, Charles Thurber, Robert Wertz and Donald

Manning corroborated claimant's testimony. Those records

consistently reported a history of a back injury at work in

October 1994 with subsequent re-injury several months later at

4 work.

Based upon claimant's testimony, which was corroborated by

Shifflett and Snow and the 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 her employment on October 31, 1994. "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. The

medical records also support the commission's finding that

claimant's "current problems originated with the October 31,

1994, accident and that subsequent incidents represent

exacerbations of the original compensable back problem."

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

Affirmed.