COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Senior Judge Hodges
SENTARA NORFOLK GENERAL HOSPITAL AND
RECIPROCAL OF AMERICA
MEMORANDUM OPINION*
v. Record No. 0753-02-1 PER CURIAM
AUGUST 13, 2002
MICHAEL W. JAMES
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.
Sentara Norfolk General Hospital and its insurer
(hereinafter referred to as "employer") contend the Workers'
Compensation Commission erred in finding that Michael W. James
(claimant) proved that he sustained an injury by accident
arising out of and in the course of his employment on November
1, 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.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 November 1, 2000, the commission found as follows:
The employer points to back problems
reported in 1992, 1995, and 1997 as evidence
of a "long history of back problems." As
set forth above, however, the claimant
complained in 1995 and 1997 of back pain,
but was eventually diagnosed with and
treated for diverticulitis. In 1999, the
claimant also complained of back pain but
was diagnosed with and treated for
prostatis. We do not believe that the
evidence fairly can be read to show that the
claimant had longstanding back problems.
Regardless, the claimant clearly
described an accident that occurred on
November 1, 2000, when he was pulling heavy
wire through a conduit at work. He credibly
described believing that his problems were
continued gastrointestinal problems, and his
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family doctor also thought this was the
case, diagnosing him with prostatis on
November 3, 2000. When his condition
worsened, an MRI was ordered and revealed a
herniated disc. Dr. [Bruce D.] Moffatt
noted on November 10, 2000, that the
claimant injured himself while pulling wire
at work about one week earlier. Dr. Moffatt
also noted that the MRI showed "what appears
to be a fresh disk herniation on the left at
L4-5. This is a significant herniation for
the space involved."
As for the recorded statement, the
claimant explained to the adjuster that he
initially had stomach pain and eventually
developed back pain. We believe that this
statement corroborated his hearing testimony
that he felt pain in his stomach and back
after pulling the wires, but initially
believed he was suffering from recurring
stomach problems. When the back pain
worsened, he received specialized treatment.
Moreover, the two co-workers who testified
corroborated that the claimant suffered an
accident at work on November 1, 2000, while
pulling wire. We believe that the claimant
met his burden of proving an injury by
accident.
The testimony of claimant and his two co-workers, Anthony
Kyles and Thomas Knight, provide credible evidence to support
the commission's findings. The significance of the content of
claimant's recorded statement was a matter for the fact finder
to weigh in assessing claimant's credibility. It did so and
accepted claimant's testimony. Furthermore, as fact finder, the
commission was entitled to weigh the medical evidence and to
conclude that claimant and his physician reasonably believed at
first that his condition was related to recurring stomach
problems, but later determined it was due to the wire pulling
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incident on June 1, 2000, which resulted in a "fresh" herniated
disc. No medical evidence showed that claimant's prior medical
condition was disabling or caused loss of time from work at any
time close to the November 1, 2000 injury by accident. "Medical
evidence is not necessarily conclusive, but is subject to the
commission's consideration and weighing." Hungerford Mechanical
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215
(1991).
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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