Super 8 Motel v. Cynthia Rosalie Breeden

• Court: Court of Appeals of Virginia
• Decided: July 29, 1997
• Docket: 0477973
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

SUPER 8 MOTEL AND CONTINENTAL CASUALTY COMPANY MEMORANDUM OPINION * v. Record No. 0477-97-3 PER CURIAM JULY 29, 1997 CYNTHIA ROSALIE BREEDEN

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Roya Palmer; Law Offices of Richard A. Hobson, on brief), for appellants. (Terry L. Armentrout; Armentrout & Armentrout, on brief), for appellee.

Super 8 Motel and its insurer (hereinafter collectively

referred to as "employer") contend that the Workers' Compensation

Commission (commission) erred in reversing the deputy

commissioner's credibility determination and finding that

Cynthia R. Breeden (claimant) proved she sustained an injury by

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

December 14, 1995. 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 [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).

Claimant testified that she slipped on ice and fell on her

back at approximately 3:30 a.m. on December 14, 1995 while at

work. Her testimony was corroborated by the medical histories

and her immediate notification of the accident to her supervisor.

Thus, credible evidence supports the commission's finding that

claimant sustained an injury by accident arising out of and in

the course of her employment on December 14, 1995. That finding

is conclusive on this appeal. See James v. Capitol Steel Constr.

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

Employer argues that the commission erred in reversing the

deputy commissioner's credibility determination. We disagree.

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

credibility is based upon 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).

The deputy commissioner's credibility determination was based on

the evidence and the substance of the witnesses' testimony.

Therefore, the full commission could make its own credibility

2 determination. See id. In its role as fact finder, the

commission was entitled to accept claimant's testimony, which was

not inherently incredible.

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

Affirmed.