COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
PENCE NISSAN OLDSMOBILE, ET AL.
OPINION BY
v. Record No. 1416-94-2 JUDGE LARRY G. ELDER
MAY 9, 1995
DARELL DONNEL OLIVER, SR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Rodney A. Satterwhite (McGuire, Woods, Battle
& Boothe, on briefs), for appellants.
Louis D. Snesil (McDonald & Snesil, P.C., on brief),
for appellee.
Pence Nissan Oldsmobile and Merchants of Virginia Group Self
Insurance Association (appellant) appeal the Workers'
Compensation Commission's award of benefits to Darell Donnel
Oliver, Sr. (claimant) based on his November 13, 1992, work-
related injury by accident. Appellant contends (1) the
commission erred in holding that the deputy commissioner
improperly relied on claimant's medical history records, and (2)
credible evidence does not support the commission's finding that
claimant suffered a back injury by accident. Because the
commission is not bound by statutory and common law rules of
evidence, we remand for reconsideration pursuant to the
commission's Rule 2.2 regarding consideration of evidence.
I.
FACTS
Claimant was an automobile service technician who worked for
Pence Nissan Oldsmobile. Claimant testified that on November 13,
1992, while lifting a one-hundred pound engine block, he felt a
stiffness or pull in his back, unaccompanied by pain. Claimant
continued his work-shift until 5:00 p.m. that day and then went
home. The next morning, claimant noticed pain that had started
to develop in his back.
Claimant sought medical treatment on November 17, 1992, from
Dr. Vaclav Vokac, who diagnosed a lumbosacral strain. Based on
claimant's statements to him, Dr. Vokac attributed the injury to
a May 6, 1991, car accident that was merely aggravated by the
lifting of heavy objects. Dr. Vokac's initial report of
claimant's injury does not mention the November 13, 1992,
incident as a cause of claimant's injury.
A physician's report by Dr. Vincent Dalton on October 26,
1993, indicates that claimant "injured his back while lifting
heavy engine blocks in the shop." Dr. Dalton, who diagnosed
degenerative joint disease accompanied by muscle spasms, stated
that he could not necessarily correlate any pre-existing
degenerative disc disease with the injury sustained on November
13, 1992. Dr. Dalton's records indicate that claimant reinjured
his back on November 24, 1992, a fact not developed at the deputy
commissioner's hearing.
Another physician's report is dated September 24, 1993, and
was prepared by Dr. Blake Dennis, who treated claimant between
December 11, 1992 and May 20, 1993. Dr. Dennis reached the same
conclusion as Dr. Dalton, stating that "[claimant] injured back
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lifting heavy engine blocks in the shop."
Finally, in his statement to an insurance representative,
claimant mentioned that he had back problems originating with on-
the-job bending and squatting. Claimant also stated that when he
installed a transmission during the week preceding November 13,
1992, he experienced pain in his back and testified to this fact
at the deputy commissioner's hearing.
Claimant filed a claim for workers' compensation benefits on
October 7, 1993. The deputy commissioner heard evidence and
filed an opinion on January 20, 1994, in which he ruled that, in
light of claimant's inconsistent reports of his accident to
doctors, he failed to prove an injury by accident. The
commission reversed the deputy commissioner's ruling and awarded
claimant benefits beginning November 17, 1992. The commission
further stated that it could not rely on history relayed by a
claimant to determine how an accident occurred.
II.
CONSIDERATION OF MEDICAL HISTORIES
As the Supreme Court of Virginia has stated, "injuries
resulting from repetitive trauma . . . as well as injuries
sustained at an unknown time, are not 'injuries by accident'
within the meaning of Code § 65.1-7." Morris v. Morris, 238 Va.
578, 589, 385 S.E.2d 858, 865 (1989)(emphasis added). In this
case, the commission was confronted with conflicting accounts of
when claimant's injury was sustained, and it was up to the
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commission to decide in which capacity these accounts could be
used in awarding or denying claimant compensation. Unlike the
practice in civil cases, Rule 2.2 of the Rules of the Workers'
Compensation Commission provides, in part:
Except for rules which the Commission
promulgates, it is not bound by statutory or
common law rules of pleading or evidence nor
by technical rules of practice.
The Commission will take evidence at
hearing and make inquiry into the questions
at issue to determine the substantial rights
of the parties, and to this end hearsay
evidence may be received.
See, e.g., Piedmont Manuf. Co. v. East, 17 Va. App. 499, 512-13,
438 S.E.2d 769, 777 (1993)(recognizing that commission is not
bound by statutory or common law rules of evidence); Cox v.
Oakwood Mining, Inc., 16 Va. App. 965, 969, 434 S.E.2d 904, 907
(1993)(recognizing that commission's rules permit hearsay
evidence); Baker v. Babcock & Wilcox Co., 11 Va. App. 419, 426,
399 S.E.2d 630, 634 (1990)(stating that hearsay evidence is
admissible before the commission); Franklin Mtg. Corp. v. Walker,
5 Va. App. 95, 99, 360 S.E.2d 861, 864 (1987)(recognizing the
permissible use of hearsay without corroboration), aff'd en banc,
6 Va. App. 108, 367 S.E.2d 191 (1988). This Court defers to the
commission's interpretation of its rules and will affirm the
commission's findings when supported by credible evidence. See,
e.g., James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515,
382 S.E.2d 487, 488 (1989).
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Because the commission may choose to consider the common law
rules of evidence when the underlying rationale for the rule is
helpful in reaching a decision, we have mentioned and discussed
the common law rules of evidence in our past opinions. For
example, in Board of Supervisors of Henrico County v. Martin, 3
Va. App. 139, 348 S.E.2d 540 (1986), the claimant's hearing
testimony proved that his accident was not compensable. The
commission nonetheless decided otherwise and relied on the
claimant's medical histories given to his physician as proof of
how the accident occurred. We held that the commission's
findings violated Massie v. Firmstone, 134 Va. 450, 462, 114 S.E.
652, 656 (1922), which stated that a party is bound by his or her
unequivocal testimony at trial. Any other language in Martin
regarding the common law rules of evidence was dicta.
In Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 371 S.E.2d
828 (1988), we held that the commission's statement that it would
not rely on claimant's medical histories to determine how an
accident occurred did not imply that the commission failed to
consider the histories for other purposes, such as impeaching
claimant or explaining the basis of the doctor's opinion. In his
concurring opinion in Small, Judge Moon elucidated the common law
differences between a prior inconsistent statement and a party
admission. See id. at 139, 371 S.E.2d at 833.
We recently re-visited the issue of the proper use of
medical histories in McMurphy Coal Co. v. Miller, __ Va. App. __,
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__, __ S.E.2d __, __ (1995). In response to the commission's use
of the dicta in Martin, we wrote that under common law rules of
evidence, medical histories are admissible substantively as party
admissions. 1 Id. In any event, Miller must not be read to hold
that the commission must follow common law rules of evidence.
After reviewing the evidence in this case, the deputy
commissioner ruled that, in light of claimant's inconsistent
reports of his accident to doctors and the insurance agent, he
failed to prove an injury by accident. The commission reversed
the deputy commissioner's ruling and awarded claimant benefits
beginning November 17, 1992. The commission further stated that,
based on Martin, it could not rely on history taken from a
claimant to determine how an accident occurred. The commission's
broad statement is contrary to the common law principles
enunciated in Martin, Small, and Miller, but more importantly, is
contrary to Rule 2.2 which gives the commission "[t]he discretion
to give probative weight to hearsay statements in arriving at its
finding of facts." Williams v. Fuqua, 199 Va. 709, 714, 101
S.E.2d 562, 566 (1958).
We therefore remand this case to the commission for
consideration consistent with this opinion.
Reversed and remanded.
1
See Charles E. Friend, The Law of Evidence in Virginia
§ 18-34 (4th ed. 1993)("Party admissions are admitted to prove
the truth of the matter asserted, and may be considered by the
trier of fact for that purpose")(emphasis added)(footnote
omitted).
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