Tidewater Mechanical Contractors v. Thomas

• Court: Court of Appeals of Virginia
• Decided: June 15, 1999
• Docket: 0368991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

TIDEWATER MECHANICAL CONTRACTORS, INC. AND COMMONWEALTH CONTRACTORS GROUP SELF INSURANCE MEMORANDUM OPINION* v. Record No. 0368-99-1 PER CURIAM JUNE 15, 1999 DOUGLAS THOMAS

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(William C. Walker; Donna White Kearney; Taylor & Walker, P.C., on brief), for appellants.

(Robert J. Macbeth, Jr.; Chanda L. Wilson; Rutter, Walsh, Mills & Rutter, L.L.P., on brief), for appellee.

Tidewater Mechanical Contractors, Inc. and its insurer

(hereinafter collectively referred to as “employer”) contend that

the Workers’ Compensation Commission erred in (1) reversing the

deputy commissioner’s credibility determination and finding that

Douglas Thomas proved he sustained an injury by accident arising

out of and in the course of his employment on January 13, 1997;

and (2) finding that Thomas proved that his disability was

causally related to the injury by accident. Upon reviewing the

record and the briefs of the parties, we conclude that this appeal

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. is without merit. Accordingly, we summarily affirm the

commission’s decision. See Rule 5A:27.

I.

“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). 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).

Although Thomas failed to persuade the deputy commissioner

that he sustained an injury by accident on January 13, 1997, the

commission reversed the deputy commissioner’s decision and

accepted Thomas’s hearing testimony regarding the occurrence of

the incident. In so ruling, the commission noted that the

initial medical report of January 15, 1997 indicated that

Thomas’s injury occurred after lifting a 300-pound box. The

commission also relied upon Dr. Richard Neff’s January 22, 1997

medical report reflecting that the injury occurred while Thomas

was moving boxes with another person, who could not hold his

end. The commission found that Thomas’s co-worker and

supervisor confirmed the occurrence of an identifiable incident

- 2 - when they testified that Thomas complained that he pulled

something in his groin area while lifting a heavy box. The

commission “acknowledge[d] that there [were] inconsistencies in

the details of the accident as reported by [Thomas], the

co-worker, the supervisor, and as recorded by the various health

care providers.” However, the commission was persuasively

convinced by “[t]he weight of the evidence . . . that [Thomas]

sustained a sudden mechanical or structural change in his body

resulting from an identifiable incident at work . . . on January

13, 1997, while he was lifting a heavy box.”

Employer contends that the commission arbitrarily and

capriciously disregarded and reversed the deputy commissioner’s

credibility determination. However, as we noted in Bullion

Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 729, 418 S.E.2d

904, 907 (1992), the record does not contain 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

Thomas failed to meet his 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 Thomas’s version of

events.]” Id.

- 3 - 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). Thomas testified

that he, David Hines, and Thomas Teehan were moving boxes of

metal pipe fittings. As he and Hines were moving a box from a

truck onto a mason’s wheelbarrow, the box slipped and all the

weight shifted to his side. After Thomas held the box and

placed it in the wheelbarrow, he felt pain in his groin,

abdomen, and back. Thomas reported the pain to Hines. Teehan

confirmed that “everything . . . [they] worked [that day] was

heavy, a two man job” and that Thomas reported an injury to him

after moving a box. Hines also testified that “[n]ormally . . .

two people . . . take the [300 pound] boxes.” Although he said

Thomas tried to move one alone, he testified that Thomas

reported an injury to him.

On January 15, 1997, when Thomas sought medical treatment

because his pain had worsened, the emergency room triage report

noted that Thomas complained of abdominal and groin pain from

“lifting a 300 lb. box.” On January 22, 1997, Dr. Neff noted

that Thomas was injured when “[t]he person on the other side

could not hold his end. The box went on [Thomas’s] left side of

his body and he complains of lower quadrant abdominal

discomfort, left groin and testicular pain.”

- 4 - Based upon Thomas’s testimony, which was essentially

corroborated by his co-workers and the contemporaneous medical

histories, we hold that credible evidence supports the

commission’s finding that Thomas suffered an injury by accident

at work on January 13, 1997. “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.

II.

“The actual determination of causation is a factual finding

that will not be disturbed on appeal if there is credible

evidence to support the finding.” Ingersoll-Rand Co. v. Musick,

7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). In ruling that

Thomas proved that his disability was, at least in part,

causally related to his January 13, 1997 injury by accident, the

commission relied upon Dr. Neff’s medical records and opinions.

Dr. Neff confirmed that he had been treating Thomas for a

work-related injury to his low back which occurred on January

13, 1997, after a lifting accident. Dr. Neff referred Thomas to

Dr. Felix Kirven, who continued to treat Thomas for residuals of

the January 13, 1997 injury. Dr. Kirven’s medical records

historically related Thomas’s symptoms to the January 13, 1997

injury by accident. Although the commission recognized that

Thomas suffered from pre-existing degenerative disease, the

- 5 - commission found that Thomas began working for employer in

August 1996 and was able to perform arduous labor until his

January 13, 1997 injury by accident. Dr. Neff’s medical records

and opinions, coupled with Dr. Kirven’s medical records and

Thomas’s testimony, constitute credible evidence to support the

commission’s finding that Thomas's disability was caused in part

by the injury by accident.

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

Affirmed.

- 6 -