COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
GT CONSTRUCTION COMPANY, INC.
AND COMMERCIAL UNION INSURANCE
COMPANIES
MEMORANDUM OPINION *
v. Record No. 2857-97-2 PER CURIAM
MAY 5, 1998
JERRY L. MORRIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Scott C. Ford; Joshua M. Wulf; Midkiff &
Hiner, on brief), for appellants.
(Richard M. Thomas; Rider, Thomas,
Cleaveland, Ferris & Eakin, on brief), for
appellee.
GT Construction Company, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission ("commission") erred in finding that Jerry L. Morris
("claimant") proved he sustained an injury by accident arising
out of and in the course of his employment on October 8, 1996.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
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).
Claimant, who worked for employer as a construction foreman,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
testified that on October 8, 1996, he and other workers had to
remove gravel in order to grade a basement. Some of the workers
used a wheelbarrow to carry the gravel. However, claimant
carried the gravel in buckets. Claimant estimated that each
bucket weighed fifty to seventy-five pounds and that he carried
two buckets at a time. He performed this work from 7:00 a.m.
until 3:30 p.m. At approximately 2:00 p.m., he felt a sudden
pain in his neck, upper back, and left shoulder while carrying
the buckets of gravel. Before 2:00 p.m., claimant had no pain in
his neck, upper back, or left shoulder. Claimant continued
working for the remaining one and one-half hours. He stated that
he felt "a little pain but nothing that would make you feel like
you needed to go to the hospital at the time." The next day
claimant told James Thomasson, the company owner, that he hurt
his shoulder and arm carrying the gravel the previous day. The
Employer's First Report, which contained information related by
claimant to Thomasson, reported that "carrying bucket of gravel
the clmt strained back."
Claimant first sought medical care on October 17, 1996 from
Dr. Lewis Castern. After conservative treatment failed to
improve claimant's symptoms, Dr. Castern referred claimant to Dr.
Howard Sherman, a neurologist. Dr. Sherman diagnosed claimant as
suffering from a herniated disc at C6-7. Dr. Sherman referred
claimant to Dr. Edgar N. Weaver, Jr., a neurosurgeon, who
recommended that claimant undergo a posterior cervical laminotomy
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and foraminotomy at C5-6 and C6-7.
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In rendering its decision, the commission found as follows:
Despite [the] inconsistencies [in
claimant's testimony], the Deputy
Commissioner found that the claimant was
credible. The Deputy Commissioner observed
the claimant and, we believe, was in a better
position to judge credibility. We do not
find these inconsistencies to be so
substantial as to require reversal of the
Deputy Commissioner's credibility
determination.
As to the medical histories, we find
them inconsistent and inconclusive to
corroborate or impeach the claimant. Dr.
Castern's October 17, 1996, report describes
a single incident, ("carrying gravel in a
bucket") and a cumulative injury ("carrying
bucketfuls of gravel.") Dr. Sherman's
November 20, 1996, report is ambiguous,
saying the claimant was injured carrying some
heavy gravel and Dr. Weaver's report
describes a specific incident, "He was
carrying heavy stones in a bucket."
"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). Claimant's testimony, which is
consistent with the Employer's First Report, the history recorded
by Weaver, and a portion of the history recorded by Dr. Castern,
provides credible evidence to support the commission's finding
that he proved an identifiable incident resulting in a sudden
mechanical change in his body. Thus, that finding is conclusive
on this appeal. See James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488 (1989).
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In rendering its decision, the commission considered
claimant's testimony, his statements to employer, his recorded
statement, and the various medical histories, and resolved any
inconsistencies in this evidence in favor of claimant. "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." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991). "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." Id.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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