Uninsured Employers' Fund v. Chen

• Court: Court of Appeals of Virginia
• Decided: March 19, 1996
• Docket: 1965954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Annunziata and Senior Judge Duff Argued at Alexandria, Virginia

UNINSURED EMPLOYERS' FUND

v. Record No. 1965-95-4 MEMORANDUM OPINION * BY JUDGE CHARLES H. DUFF DEHANG CHEN MARCH 19, 1996

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Paul S. Stahl, Assistant Attorney General (James S. Gilmore, III, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General, on brief), for appellant. Dehang Chen, pro se.

Uninsured Employers' Fund appeals from a decision in which

the Workers' Compensation Commission affirmed the deputy

commissioner's award of medical benefits to Dehang Chen (Chen).

The commission found that Chen suffered a work-related injury to

his head when he walked into a parking sign after delivering food

for his employer, owner of the New Beijing Restaurant. The issue

presented in this appeal is whether the commission erred in

finding that Chen suffered a work-related injury to the right

side of his head from walking into a parking sign when the

medical records indicate Chen was treated for an injury on the

left side of his head caused by hitting a pipe or bar. We affirm

the commission's decision.

Chen delivered food for the New Beijing Restaurant. On * Pursuant to Code § 17-116.010 this opinion is not designated for publication. August 2, 1993, Chen was returning to the restaurant after making

a delivery when he walked into a parking sign. Chen stated that

he hit the right side of his head on the sign, and felt pain and

saw "stars." Chen told his employer that he hit the right side

of his head on a parking sign and pointed to the right side of

his head. His employer did not see any marks or swelling on

Chen's head.

On August 9, 1993, Chen sought medical treatment for this

injury, complaining of headache, nausea, and garbled speech. The

initial history form states that Chen was "struck on the front

part of his head by a metal bar which fell." Other medical

records indicate that Chen hit his head on a "low running pipe."

Chen was diagnosed as suffering a left posterior parietal

intercerebral hematoma, likely to be "at least one week old."

This diagnosis was consistent with Chen's symptoms. On appellate review, the factual findings of the commission

are binding if they are supported by credible evidence. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991); James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515,

382 S.E.2d 487, 488 (1989). The fact that there is contrary

evidence in the record is of no consequence if there is credible

evidence to support the commission's finding. Franklin Mortgage

Corp. v. Walker, 6 Va. App. 108, 110-11, 367 S.E.2d 191, 193

(1988) (en banc). "In determining whether credible evidence

exists, the appellate court does not retry the facts, reweigh the

2 preponderance of the evidence, or make its own determination of

the credibility of the witnesses." Wagner Enters., Inc., 12 Va.

App. at 894, 407 S.E.2d at 35.

The commission found that Chen established that the work-

related injury to his head necessitated the medical treatment he

sought seven days after the accident. The Uninsured Employers'

Fund argues that this factual finding is not supported by

credible evidence. We disagree. Chen testified that he injured

the right side of his head by walking into a parking sign. He

reported these facts to his employer. A week later, when Chen

sought medical treatment, he was diagnosed as having a head

injury, likely to be "at least one week old." Chen was not

fluent in English. His testimony before the deputy commissioner

and the "history" given to his health care providers was through

a translator. Chen's symptoms included garbled speech. The

commissioner reasonably inferred that the inconsistencies,

regarding which side of his head was injured and by what, were

caused by translation and speech problems. The commission's

findings of fact are supported by credible evidence and the

inferences drawn from those facts are reasonable. For the reasons stated, we affirm the commission's decision. Affirmed.