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
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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.
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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.”
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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
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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.
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