MCR Property, etc. v. Michael W. Slagle .

• Court: Court of Appeals of Virginia
• Decided: July 18, 1995
• Docket: 0229953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

MCR PROPERTY MANAGEMENT, INC. AND ERIE INSURANCE EXCHANGE MEMORANDUM OPINION * v. Record No. 0229-95-3 PER CURIAM JULY 18, 1995 MICHAEL W. SLAGLE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Monica L. Taylor; Ronnie L. Clay; Gentry, Locke, Rakes & Moore, on briefs), for appellants.

(H. Keith Moore; Mark K. Cathey; Cranwell & Moore, on brief), for appellee.

MCR Property Management, Inc. and Erie Insurance Exchange

(hereinafter collectively referred to as "MCR") contend that the

Workers' Compensation Commission erred in reversing the deputy

commissioner's credibility determination and finding that (1)

Michael W. Slagle proved that he sustained an injury by accident

arising out of and in the course of his employment on July 23,

1993; and (2) Slagle's herniated disc was caused by the July 23,

1993 injury by accident. 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 before the commission. R.G. Moore Bldg. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990). Factual findings made by the commission will be upheld

on appeal if supported by credible evidence. James v. Capitol

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

(1989).

Slagle, a maintenance worker employed by MCR, testified

that, on Friday, July 23, 1993, he unbolted a toilet and, as he

began to lift it, he experienced back pain so severe that he fell

to his knees. Slagle reported his back pain to his supervisor at

the end of his shift. Slagle had a prior back strain in 1991.

That strain resolved after one week. James Powers, Slagle's supervisor, testified that, on the

evening of July 23, 1993, Slagle told him that his back was

bothering him and he needed a few days off to go to the doctor.

Powers testified that Slagle did not tell him about the specific

incident of lifting a toilet.

On August 17, 1993, Slagle provided a written statement to

Jeannie Stosser, the owner of MCR, in which he related that

"[d]uring the course of renovating the apartments at Draper's

Meadow, while moving stoves, refrigerators, countertops, and

pulling up toilets, I have injured my back."

On June 26, 1993, Dr. C.L. Boatwright diagnosed an acute low

back strain. Slagle gave Dr. Boatwright a history of "[o]ver the

course of the day I was moving and lifting. The next day my low

back hurt." Slagle was put on bedrest over the next few weeks;

2 however, his symptoms did not subside. A CT scan revealed a

herniated disc.

On August 19, 1993, Slagle underwent surgery for his

herniated disc. Dr. Ward Stevens, the neurosurgeon, related a

history of "doing a great deal of heavy lifting about three weeks

ago while at work and developing a great deal of low back and

shortly thereafter right leg pain, numbness and weakness." Dr.

Stevens indicated that Slagle told him he injured his back while

working on a Friday. Dr. Stevens opined that "[i]t is my medical

opinion within a reasonable degree of medical certainty that Mr.

Slagle's disc herniation occurred with his initial injury." The deputy commissioner found that Slagle's testimony was

impeached by the failure of the medical reports to indicate that

the disc rupture occurred while he was lifting a toilet, by

Slagle's failure to tell his employer of a specific incident, and

by Slagle's written statement that he lifted toilets and other

appliances. The full commission reversed the deputy's

determination, and found that [t]he claimant indicated that his back became sore through lifting over a period of time. However, this does not negate the occurrence of a specific incident which occurred on Friday, July 23, 1993, while lifting one toilet. Dr. Stevens states that the disc herniation was the result of a single "initial incident." It comports with human experience that the claimant would describe the general activities which caused soreness in his back, and such a general description does not impeach his testimony of an acute incident which brought him to his knees and produced a sudden mechanical change, i.e. disc herniation.

3 If, as in this case, "the deputy commissioner's

determination of credibility is based on the substance of the

testimony rather than upon the witness's demeanor, such a finding

is as determinable by the full commission as by the deputy."

Kroger Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 880

(1992).

Slagle's testimony provides credible evidence to support the

commission's finding that he sustained an injury by accident

arising out of and in the course of his employment. The deputy

commissioner's determination that Slagle's assertion of an injury

by accident was not credible was based on the evidence and the

substance of Slagle's testimony. Therefore, the full commission

could make its own credibility determination. Id. The medical

histories provided by Slagle to his physicians do not necessarily

contradict his testimony. In addition, these histories are

consistent with Dr. Stevens' opinion that Slagle could first have

a sore back, which would later develop into leg pain, thus

indicating a herniated disc.

The commission could have reasonably inferred from Slagle's

testimony and Dr. Stevens' opinion that Slagle sustained an

identifiable incident on July 23, 1993 which caused an obvious

sudden mechanical or structural change in his body. "Where

reasonable inferences may be drawn from the evidence in support

of the commission's factual findings, they will not be disturbed

by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7

4 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).

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

Affirmed.