COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Hodges
SHORE LIFE CARE AT PARKSLEY,
SHORE MEMORIAL HOSPITAL AND
RECIPROCAL OF AMERICA
MEMORANDUM OPINION*
v. Record No. 0754-02-1 PER CURIAM
AUGUST 13, 2002
GARY ALLEN DAVIDSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(George J. Dancigers; Heilig, McKenry,
Fraim & Lollar, P.C., on brief), for
appellants.
(Alan P. Owens, on brief), for appellee.
Shore Life Care at Parksley, Shore Memorial Hospital and
its insurer (hereinafter referred to as "employer") contend the
Workers' Compensation Commission erred in finding that Gary
Allen Davidson (claimant) proved that he sustained an injury by
accident arising out of and in the course of his employment on
June 20, 2000. Upon reviewing the record and the parties'
briefs, 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. R.G. Moore Bldg. Corp. v.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
order to carry his burden of proving an 'injury by accident,' a
claimant must prove that the cause of his 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).
Factual findings made by the commission will be upheld on
appeal if supported by credible evidence. See James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989). Furthermore, it is well settled that credibility
determinations are within the fact finder's exclusive purview.
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363
S.E.2d 433, 437 (1987).
In ruling that claimant proved an injury by accident
occurring on June 20, 2000 and deferring to the deputy
commissioner's credibility determination, the commission found
as follows:
The claimant testified to lifting the second
bag of dirt and feeling a twinge in his
back. He explained that he continued to
work and that his condition progressively
worsened. Although the claimant's initial
medical reports do not describe the
incident, he testified that he told his
physicians about the lifting incident at
work. Beginning in August 2000, the medical
records reference a discrete onset of back
pain after a particular lifting incident at
work. Thereafter, no physician suggests
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another source of the claimant's back
condition.
The testimony of [Tracy] Turman and
[Tanja] Bagwell does not contradict the
claimant's testimony. Turman did not
observe the claimant lifting the bags. He
only discussed with him a method of doing
the job before the incident. Thus, Turman
did not know which cart the claimant used or
how the incident occurred. Similarly,
Bagwell's later observation of two bags of
dirt on a flatbed is irrelevant. This does
not establish that the claimant did not lift
two bags, place them in the tub cart, and
take them to the dumpster.
The Deputy Commissioner determined that
the claimant credibility [sic] testified
regarding the injury by accident. We find
the record is insufficient to reverse.
While the Commission has the authority to
assess the credibility of witnesses, a
Deputy Commissioner's credibility findings
are given deference on Review. A Deputy
Commissioner is generally better positioned
to observe and evaluate the demeanor of the
witnesses.
Claimant's testimony, which was not inconsistent with the
testimony of his co-workers, coupled with the medical records
beginning August 3, 2000, provide credible evidence to support
the commission's findings. As fact finder, the commission was
entitled to weigh the medical evidence and the witnesses'
testimony. The significance of the lack of a history of a
specific incident in the immediate post-accident medical reports
was a matter for the fact finder to weigh in assessing
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claimant's credibility. The commission did so and accepted
claimant's testimony.
Because the commission's findings are supported by credible
evidence, they are binding and conclusive upon us on appeal.
"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." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991). Moreover, "in
determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of
the witnesses." Id.
For these reasons, we affirm the commission's decision.
Affirmed.
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